                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 99-3850
                                     ___________

Brian K. Ellis,                           *
                                          *
             Appellant,                   *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Eastern District of Arkansas.
Larry Norris, Director, Arkansas          *
Department of Correction,                 *
                                          *
             Appellee.                    *
                                     ___________

                              Submitted: September 13, 2000
                                  Filed: November 9, 2000
                                   ___________

Before BOWMAN and BEAM, Circuit Judges, and BOGUE,1 District Judge.
                           ___________

BOWMAN, Circuit Judge.

       Effective January 1, 1994, the State of Arkansas repealed a statute that had
previously afforded prison officials the discretion to award additional good-time credits
to prisoners. See House Act of March 16, 1993, 1993 Ark. Acts 536 § 6; Senate Act
of March 16, 1993, 1993 Ark. Acts 558 § 6. Brian K. Ellis, convicted and sentenced
in 1992, brought suit claiming that because the repeal took away his ability to be
awarded these additional good-time credits the legislation represented an ex post facto

      1
       The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota, sitting by designation.
violation of his rights. The Arkansas Supreme Court made a thorough review of the
relevant precedent and held that the repeal did not represent an ex post facto violation
under either the Arkansas or United States Constitution. See Ellis v. Norris, 968
S.W.2d 609 (Ark. 1998). The sole issue under consideration in this habeas appeal is
whether the Arkansas Supreme Court's determination of Ellis's claim under the Ex Post
Facto Clause of the United States Constitution "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) (1994 & Supp. IV
1998). Finding the Arkansas Supreme Court's decision neither contrary to precedent
nor unreasonable, the District Court2 denied Ellis's habeas petition. We affirm.

                                           I.

       Brian Ellis entered a guilty plea for the delivery of a controlled substance and
was sentenced to twenty-five years of imprisonment in the Arkansas Department of
Correction (ADC) on December 8, 1992. At that time, Arkansas allowed prisoners in
the ADC to earn credit toward the reduction of their prison term and parole eligibility
date through a two-tier system. Meritorious good-time (regular good-time) credit, not
at issue in this appeal, represented the primary type of credit. Inmates accrued this
credit based purely on class status. See Ark. Code Ann. § 12-29-202(a)-(f) (Michie
Supp. 1993) (repealed 1994). An ADC classification committee serves to place
inmates into one of four classes based on "behavior, good discipline, medical condition,
and job responsibility." Id. § 12-29-202(c). Inmates then accrue regular good-time




      2
       The Honorable George W. Howard, Jr., United States District Court for the
Eastern District of Arkansas.
                                          -2-
credit based on their assigned class,3 up to a maximum of thirty days for each month
served. See id. § 12-29-201(a).

       Arkansas law also allowed prison officials the discretion to award inmates
additional meritorious good-time (extra good-time) credit based on the "completion of
rehabilitative programs, special jobs performed, and/or as a result of heroic acts or
other exceptional circumstances." Id. § 12-29-202(f). Unlike the classification
schedule used for assigning regular good-time credit, extra good-time credit resulted
only if the Board of Correction accepted recommendations from both the classification
committee and the director of the ADC. See id. ("Upon recommendation of the
classification committee, the director may recommend to the Board of Correction
additional days of meritorious good time . . . .").

       On January 1, 1994, the State of Arkansas repealed the statutory provision that
had allowed the awarding of extra good time. See 1993 Ark. Acts 536 § 6, 558 § 6.
Ellis received all of the extra good time that he had accrued prior to the repeal and
remained eligible to earn regular good time. He concedes that the legislation only
limited the discretion of prison officials to award extra good time after the repeal.

       In 1996, Ellis initiated suit in Arkansas state court asserting that the legislation
repealing extra good time represented an ex post facto violation because it retroactively
removed his opportunity to be awarded extra good time. The Arkansas Circuit Court
denied relief and the Supreme Court of Arkansas affirmed the denial. See Ellis, 968
S.W.2d at 612. Ellis then sought relief in federal court by filing an application for a
writ of habeas corpus under 28 U.S.C. § 2254, reiterating his claim that the repeal of
extra good time provisions violated the Ex Post Facto Clause of the United States


       3
        For each month served, prisoners could receive the following regular good-time
credit: 30 days for Class I status, 20 days for Class II status, 8 days for Class III status,
and no days for Class IV status. See Ark. Code Ann. § 12-29-202(d).
                                             -3-
Constitution. After careful consideration, the District Court denied Ellis's habeas
petition.

                                           II.

       This case derives from a habeas petition filed under 28 U.S.C. § 2254,
subsequent to its amendment by the Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA), and we accord the Arkansas
Supreme Court's adjudication on the merits appropriate deference. See 28 U.S.C.
§ 2254(d). Therefore, we can only grant a writ of habeas corpus if the state court
decision "was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States" or
"was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding." Id. Ellis presents no challenges to the
Arkansas Supreme Court's determination of the facts, and thus we shall apply only the
post-AEDPA standard for reviewing that court's legal conclusions. Using that standard,
we review the District Court's conclusions of law de novo. See Whitmore v. Kemna,
213 F.3d 431, 432 (8th Cir. 2000).

                                          III.

      The Constitution provides that "[n]o State shall . . . pass any . . . ex post facto
Law." U.S. Const. art. I, § 10, cl. 1.4 The United States Supreme Court has
determined that based on original understanding this provision serves to prohibit
legislative acts that would "retroactively alter the definition of crimes or increase the
punishment for criminal acts." Collins v. Youngblood, 497 U.S. 37, 43 (1990). Thus,
in order for an ex post facto violation to occur, a statute must be "retrospective—that


      4
       The Constitution includes a similar prohibition of ex post facto laws passed by
the federal government. See U.S. Const. art. I, § 9, cl. 3.
                                           -4-
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) (citation
omitted) (quoting Weaver v. Graham, 450 U.S. 24, 29 (1981)). In the instant appeal,
the State of Arkansas concedes that the repeal of extra good-time credit applies
retroactively, i.e., it applies to prisoners serving sentences imposed prior to the repeal,
as well as to those serving sentences imposed afterwards. See Ellis, 968 S.W.2d at
610. Ellis does not allege any alteration of the criminal conduct for which he is being
punished. The question that we must address then narrows to whether the Arkansas
legislation that eliminates the opportunity to earn extra good time "increases the penalty
by which a crime is punishable." California Dep't of Corrections v. Morales, 514 U.S.
499, 507 n.3 (1995); see also Johnson v. United States, 120 S. Ct. 1795, 1800 (2000)
(finding that this part of the ex post facto claim requires proof that the legislation
"raises the penalty from whatever the law provided when [the petitioner] acted").

      Relying on the Supreme Court decision in Weaver, Ellis argues that the repeal
of extra good time disadvantaged him by lengthening the time he might spend in prison
and that it therefore increased the penalty for his crime. In Weaver, the Court held that
a Florida statute represented an ex post facto violation when it reduced the amount of
statutory good-time credits automatically provided to prisoners who maintained good
behavior. See 450 U.S. at 35-36. Ellis contends that Weaver's reasoning with respect
to statutory good time automatically conferred upon an administrative determination of
good behavior applies equally to the discretionary good time in his case.

        The Supreme Court of Arkansas distinguished Weaver based on the mandatory
nature of the good-time credits at issue in that case, as well as the Supreme Court's
refinement of the standard for determining when a prisoner is disadvantaged by a
retroactive law. See Ellis, 968 S.W.2d at 611-12. The court initially determined that
the repealed extra good-time credits were discretionary under the Arkansas statute. See
id. at 609, 612. Ellis has not challenged the discretionary nature of the extra good-time

                                            -5-
credits and we necessarily defer to the Arkansas Supreme Court's reading of an
Arkansas statute.5 See Barrett v. Acevedo, 169 F.3d 1155, 1163 (8th Cir.) (en banc)
("When the outcome of federal habeas litigation involves a matter of state law, a federal
court is bound by a legal interpretation made by the state's highest court."), cert. denied,
120 S. Ct. 120 (1999). Further, the court acknowledged the line of subsequent
Supreme Court cases that clarified Weaver's broad language concerning the
disadvantages that amount to ex post facto violations. See Ellis, 968 S.W.2d at 611-12.
Interpreting this precedent, the Arkansas Supreme Court noted that in Morales "the
Supreme Court observed that the language in the Weaver opinion was inconsistent with
its decision in Collins v. Youngblood, and most important, that it was unnecessary to
the outcome of the case." Id. at 611. The court also recognized the Supreme Court's
admonition in Morales that an ex post facto violation does not rest on an inmate's lost
opportunity to reduce prison time, but rather only upon a finding that legislation
retroactively modified the definition of or increased the penalty for an inmate's crime:

       After Collins, the focus of the ex post facto inquiry is not on whether a
       legislative change produces some ambiguous sort of "disadvantage," nor
       . . . on whether an amendment affects a prisoner's "opportunity to take
       advantage of provisions for early release," but on whether any such
       change alters the definition of criminal conduct or increases the penalty
       by which a crime is punishable.

Morales, 514 U.S. at 506-07 n.3 (citation omitted), quoted in Ellis, 968 S.W.2d at 611.
Thus, the Arkansas Supreme Court reasoned that "Weaver is not helpful to Ellis unless
the repeal of 'extra good time' actually operates to increase his sentence, rather than
merely remove his opportunity to reduce his time in prison." Ellis, 968 S.W.2d at 612.
The court concluded that "all that was lost was the opportunity to earn discretionary

       5
        Even if Ellis sought to challenge the determination that extra good time
remained discretionary as a factual issue, he has submitted no evidence to overcome
the presumption that the Arkansas Supreme Court's finding was correct. See 28 U.S.C.
§ 2254(e)(1).
                                            -6-
good time toward the reduction of a prison sentence" and that "[a]ccordingly, it can not
be said that Acts 536 and 558 [repealing extra good time] operated to increase his
sentence." Id.




                                          -7-
                                           IV.

        We find the Arkansas Supreme Court's decision neither "contrary to" nor "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 also Williams v.
Taylor, 120 S. Ct. 1495, 1519-23 (2000) (defining the terms of § 2254(d)). The court
first recognized the proper standard for determining when an ex post facto violation has
occurred. It appropriately referenced the Supreme Court's pronouncement in Morales
that after its decision in Collins the question is whether the legislative "change alters
the definition of criminal conduct or increases the penalty by which a crime is
punishable." 514 U.S. at 507 n.3. Since Morales, the Supreme Court has continued
to recognize this standard. See Johnson, 120 S. Ct. at 1800 (citing Morales when
stating the standard for an ex post facto violation); Lynce, 519 U.S. at 443 (stating that
in Morales the Court found that "the relevant inquiry is whether the 'change alters the
definition of criminal conduct or increases the penalty by which a crime is
punishable'").

       We also agree with the Arkansas Supreme Court that Ellis's reliance on Weaver
is unconvincing. The Supreme Court emphasized in Weaver, as well as in subsequent
decisions, the mandatory nature of the good-time credits at issue in that case. See
Weaver, 450 U.S. at 35 ("[U]nder both the new and old statutes, an inmate is
automatically entitled to the monthly gain time simply for avoiding disciplinary
infractions and performing his assigned tasks."); see also Lynce, 519 U.S. at 441-42
(discussing the statutory formula for the awarding of credits under the statute in
Weaver); Morales, 514 U.S. at 506 (finding that in Weaver the "state statutes provided
a formula for mandatory reductions to the terms of all prisoners who complied with
certain prison regulations and state laws"). In contrast, the repealed Arkansas statute
provided explicit discretion and no formulas for the awarding of extra good time. The
classification committee or the director of the ADC could stop recommending extra
good time altogether at any point whether or not a prisoner undertook the acts

                                           -8-
necessary to qualify for the credits. Likewise, the exercise of discretion in awarding
extra good time in the past imparted no requirement for officials to continue to make
such awards in the future.6 It would seem quite odd then that Arkansas legitimately
could achieve the same ends in terminating the awards of extra good time simply
through exercising its discretion, but that an explicit legislative statement ending such
awards would represent an ex post facto violation. This demonstrates that, at best, the
effect of the repeal created "only the most speculative and attenuated possibility of
producing the prohibited effect of increasing the measure of punishment for covered
crimes, and such conjectural effects are insufficient under any threshold we might
establish under the Ex Post Facto Clause." Morales, 514 U.S. at 509; see also Abed v.
Armstrong, 209 F.3d 63, 66 (2d Cir.) (finding no ex post facto violation because
"[u]nlike the statutes at issue in both Weaver and Lynce, [this statute] does not
automatically confer the right to earn good time credit on all inmates [but r]ather . . .
only that inmates 'may' earn good time credit, thereby rendering good time credit a
discretionary matter") (citation omitted), cert. denied, No. 00-5309, 2000 WL 1053587
(Oct. 2, 2000).

       We conclude that the Arkansas Supreme Court's decision is not "contrary to . . .
clearly established Federal law" because the discretionary nature of the repealed extra
good-time credit materially distinguishes it from any relevant Supreme Court precedent.
28 U.S.C. § 2254(d)(1); see also Williams, 120 S. Ct. at 1523 ("Under the 'contrary
to' clause, a federal habeas court may grant the writ if the state court arrives at a
conclusion opposite to that reached by this Court on a question of law or . . . decides
a case differently than this Court has on a set of materially indistinguishable facts.").
The Arkansas Supreme Court also identified the proper legal standard and applied it
in a reasonable fashion. See id. ("Under the 'unreasonable application' clause, a federal


      6
        To hold otherwise would provide a one-way ratchet for the exercise of
discretion and impermissibly tie the hands of states attempting to equitably administer
their prison systems.
                                           -9-
habeas court may grant the writ if the state court identifies the correct governing legal
principle from this Court's decisions but unreasonably applies that principle to the facts
of the prisoner's case."). Accordingly, the judgment of the District Court denying Ellis's
petition for a writ of habeas corpus is affirmed.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                           -10-
