     Case: 14-30349    Document: 00513054373      Page: 1   Date Filed: 05/26/2015




                         REVISED May 26, 2015

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                  No. 14-30349                        United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
ROGER PRICE,                                                             May 12, 2015
                                                                        Lyle W. Cayce
             Petitioner - Appellant                                          Clerk

v.

WARDEN FORCHT WADE CORRECTIONAL CENTER,

             Respondent - Appellee




                 Appeal from the United States District Court
                    for the Western District of Louisiana


Before JONES, CLEMENT, and PRADO, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      The district court denied petitioner-appellant Roger Price’s (“Price’s”)
application for a writ of habeas corpus. The district court also issued Price a
certificate of appealability (“COA”) pursuant to 28 U.S.C. § 2253. Price appeals,
arguing that the state court judgment below violated the Ex Post Facto Clause
of the U.S. Constitution. See U.S. Const. art. I, § 9, cl. 3 (“No Bill of Attainder
or ex post facto Law shall be passed.”). For the reasons explained below, we
hold that Louisiana Revised Statutes § 15:571.4(B)(2) is void as applied to
Price, whose crime occurred before its effective date. Accordingly, we
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REVERSE the district court’s judgment denying habeas relief and REMAND
for the district court to order the recalculation of Price’s release date.
                              FACTS AND PROCEEDINGS
       Price was sentenced for armed robbery by a Louisiana court in 1985. At
the time, an offender who violated his conditions of parole could forfeit no more
than 180 days of good-time credit earned prior to his parole. See La. Rev. Stat.
Ann. § 15:571.4(B)-(C) (1981). In 1997, Louisiana amended Section 15.571.4 so
that an inmate who violated his parole conditions would forfeit all good-time
credit earned prior to his parole. See 1997 La. Acts 1354 (codified as amended
at La. Rev. Stat. § 15:571.4(B)(2)). 1 The State paroled Price in 2003. Price later
violated his parole conditions, and the State revoked his parole. When
calculating Price’s new release date, prison officials applied Section 15.571.4,
as amended in 1997, and determined that Price forfeited all good-time credit
he had earned prior to his parole. After exhausting his administrative
remedies, Price sought judicial review of the forfeiture determination in
Louisiana state court.
       A state court commissioner recommended that the state district court
deny Price’s appeal. Reprinted in Price v. Michaels, No. 2009 CA 1401, 2010
WL 502984, app. A, at *2 (La. Ct. App. Feb. 12, 2010). Price filed an objection
to the commissioner’s recommendation, citing Greenfield v. Scafati, 277 F.
Supp. 644 (D. Mass. 1967) (three-judge panel), aff’d mem., 390 U.S. 713 (1968)
(per curiam). Both the state district court and intermediate appellate court
adopted the commissioner’s report and recommendation without mentioning
Price’s federal claims or relevant federal law. See Price, 2010 WL 502984. Price



       1 The Louisiana legislature amended the statute in 1991, moving what was codified
at Subsection C at the time of Price’s sentencing to Subsection B, and breaking the material
into separately numbered parts. Besides this organizational change, the 1991 changes are
not relevant to our analysis.
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petitioned the Louisiana Supreme Court for supervisory review. The court
denied his petition in a one-word order. See Price v. Michaels, 57 So. 3d 328
(La. 2011) (mem.).
       Price filed a petition for writ of habeas corpus in federal district court
under 28 U.S.C. § 2254, naming respondent-appellee the Warden of Forcht
Wade Correctional Center (the “Warden”) as defendant. The district court
referred Price’s petition to a federal magistrate judge, who reasoned that,
because Greenfield was a summary affirmance, it had only “limited
precedential value” and could not be treated as clearly established law under
28 U.S.C. § 2254(d)(1). Reprinted in Price v. Warden, Forcht Wade Corr. Ctr.,
No. 11-cv-0386, 2014 WL 1270020, at *6 (W.D. La. Mar. 27, 2014). The district
court adopted the magistrate judge’s report and recommendation and denied
Price’s habeas petition. Id. at *1. It also granted Price’s request for a COA. Id.
Price appeals to this court pro se.
                                       DISCUSSION
                                              I.
                                             A.
       When “a person in custody pursuant to the judgment of a State court”
presents a claim in a federal habeas petition that “was adjudicated on the
merits in State court,” 2 we lack the power to grant relief “unless the
adjudication of the claim . . . resulted in a decision that was contrary to
. . . clearly established Federal law, as determined by the Supreme Court of the




       2 In Hoffman v. Cain, 752 F.3d 430 (5th Cir. 2014), this court held that, where neither
party rebuts the presumption that a summary opinion is “on the merits,” the court was bound
to “giv[e] the deference ordered by § 2254(d).” Id. at 439. The summary denial of supervisory
review discussed in Hoffman is identical to the summary denial in this case, compare id. at
436 & n.20, with Price, 57 So. 3d at 328, and neither party rebuts the “on the merits”
presumption. Accordingly, we presume that the Louisiana Supreme Court’s decision was “on
the merits” and give deference under § 2254(d).
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United States.” 28 U.S.C. § 2254(d)(1). A state court’s decision is “contrary to
. . . clearly established Federal law” if, inter alia, “the state court decides a case
differently than th[e] [Supreme] Court has on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). 3
                                             B.
       “[A] summary affirmance by the Supreme Court is entitled to
precedential weight. . . .” SDJ, Inc. v. City of Houston, 841 F.2d 107, 108 (5th
Cir. 1988) (per curiam). Just as with the Court’s other precedential opinions,
lower courts should assume they “are bound by summary decisions . . . ‘until
such time as the Court informs (them) that (they) are not.’” Hicks v. Miranda,
422 U.S. 332, 344-45 (1975) (second and third alterations in original) (quoting
Doe v. Hodgson, 478 F.2d 537, 539 (2d Cir. 1973)). Contrary to the magistrate
judge’s reasoning, then, summary affirmances “without doubt reject the
specific challenges presented in the statement of jurisdiction” and “do prevent
lower courts from coming to opposite conclusions on the precise issues
presented and necessarily decided by those actions.” Mandel v. Bradley, 432
U.S. 173, 176 (1977) (per curiam); cf. Ill. State Bd. of Elections v. Socialist
Workers Party, 440 U.S. 173, 183 (1979) (distinguishing determinations that
were “essential to sustain the judgment” from those that “‘merely lurk in the
record’” (quoting Webster v. Fall, 266 U.S. 507, 511 (1925))). Because summary
affirmances “do[ ] not necessarily represent the Court’s endorsement of the
lower court’s reasoning,” we look primarily to the jurisdictional statement filed
by the petitioner in the Supreme Court to determine what issues were
presented and necessarily decided by the Court in its summary affirmance.
SDJ, Inc., 841 F.2d at 108. We also consider whether the facts presented in the


       3Although Price does not specify that he seeks relief under the “contrary to” standard,
his appellate brief suggests that he seeks relief on that ground. Accordingly, we apply the
“contrary to” standard.
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                                       No. 14-30349
former case are sufficiently analogous to those presented in the pending case.
See Mandel, 432 U.S. at 177 (explaining that the “precedential significance of
the summary action . . . is to be assessed in the light of all of the facts in that
case”).
                                             II.
       A law violates the Ex Post Facto Clause if it is “retrospective,” that is, it
“appl[ies] to events occurring before its enactment,” and it “disadvantage[s] the
offender affected by it.” Weaver v. Graham, 450 U.S. 28, 29 (1981). The parties
do not dispute that Section 571.4(B)(2) disadvantages Price. Accordingly, we
need only determine whether the law is retrospective. Price argues that
Greenfield controls this question. Considering the issues presented and
necessarily decided in Greenfield, and finding that the facts in Greenfield are
materially indistinguishable from the facts of this case, we agree with Price.
       In Greenfield, a Massachusetts man was sentenced to prison at a time
when Massachusetts law did not provide for the forfeiture of good-time credits
for parole violations. Greenfield, 277 F. Supp. at 644-45. 4 After the prisoner
was sentenced, the State enacted a law providing that a prisoner who violated
his parole conditions could not earn good-time credits during the first six
months after parole revocation. Id. at 645. “[R]ecognizing that there might be
objections to retrospective application, the legislature made the provision
prospective to the extent that it was not to apply to persons currently on parole.
It did, otherwise, apply to persons already under sentence.” Id. Though the
prisoner was sentenced before the law was enacted, he “was paroled after [it]
took effect, and upon his violation of parole and return to prison the statute




       4We refer to the lower court opinion to discern the relevant facts, but for the reasons
explained above, not to consider the lower court’s reasoning.
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                                       No. 14-30349
was invoked.” Id. As a result, the prisoner’s release was “considerably delayed.”
Id.
       The Warden argues that no Supreme Court opinion clearly establishes
that applying Louisiana’s good-time forfeiture law to Price violated the Ex Post
Facto Clause, because the application of the law was “triggered by misconduct
committed by the petitioner after the new law [was] enacted.” In Greenfield,
the Massachusetts prison superintendent (“Superintendent”) argued that
Massachusetts’s law was not retrospective because it was in effect before the
prisoner was paroled, and “the relevant act [was] the [prisoner’s] violation of
the terms of his parole, and not the commission of the original offense.”
Jurisdictional Statement at *8-9, Scafati v. Greenfield, 390 U.S. 713 (1968)
(No. 1104), 1968 WL 129215. By summarily affirming in Greenfield, the Court
necessarily held that a good-time forfeiture law enacted after a prisoner’s
sentencing is retrospective, even if forfeiture is triggered by the parolee’s post-
enactment conduct. 5 Unless the particular facts presented in Greenfield render
it inapplicable to this case, the rule in Greenfield is clearly established and
controls here.
       In Greenfield, the Superintendent argued that the prisoner “knew that,
if he violated parole, he would not receive good-conduct deductions.”
Jurisdictional Statement, 1968 WL 129215, at *9 (emphasis added). The
Warden emphasizes that Price agreed that if he violated his parole conditions,
he would forfeit good-time credit. We recognize the factual difference between
tacit and express agreement, but “[c]onduct may often convey as clearly as
words a promise or an assent to a proposed promise.” Restatement (Second) of


       5 See also Weaver v. Graham, 450 U.S. 24, 32 (1981) (citing Greenfield as “precedent”
and explaining that changing good-time rules alters the effective sentence, even if those rules
were not technically a part of the original sentence); id. at 37 (Blackmun, J. concurring)
(citing Greenfield as “precedent” for the proposition that even good-time laws that apply “only
prospectively” violate the Ex Post Facto Clause).
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Contracts § 19 cmt. a (1981). The Warden fails to explain why we should treat
the prisoner’s knowing acceptance of parole conditions by conduct in Greenfield
as materially different from Price’s acceptance by contract. We hold that this
factual difference does not make Greenfield inapplicable to this case.
       Because Greenfield is materially indistinguishable, the rule established
in Greenfield controls. 6 We hold that the state court’s judgment was contrary
to clearly established federal law as determined by the Supreme Court.
Accordingly, we hold that Price is entitled to federal habeas relief under
§ 2254(d).
                                      CONCLUSION
       For the reasons explained, we REVERSE the district court’s judgment
denying habeas relief, and REMAND this case to the district court with
instructions to order the State of Louisiana to either recalculate Price’s
sentence using the law in effect at the time of his offense or release him from
custody within 180 days of the date of the district court’s order on remand.




       6 It also follows that there are no arguments in support of the state court’s judgment
that could reasonably be viewed as consistent with the Supreme Court’s holding in
Greenfield. See Williams v. Thaler, 684 F.3d 597, 603 (5th Cir. 2012) (holding that, when
state court enters judgment without a written opinion, courts must determine whether there
are theories that could have supported the state court’s judgment, and if so, whether those
theories could be reasonably viewed as consistent with Supreme Court precedent).
                                             7
