1The Honorable Andrew W. Bogue, United States District Judge for the District

of South Dakota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 99-3850

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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. *

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Submitted: September 13, 2000

Filed: November 9, 2000 

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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Effective January 1, 1994, the State of Arkansas repealed a statute that had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
2The Honorable George W. Howard, Jr., United States District Court for the

Eastern District of Arkansas.

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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
3For 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).

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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
4The Constitution includes a similar prohibition of ex post facto laws passed by

the federal government. See U.S. Const. art. I, § 9, cl. 3.

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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
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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
5Even 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).

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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
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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. 
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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
6To 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.

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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
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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.