### REVISED May 26, 2015

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 30349

ROGER PRICE,

Petitioner

- Appellant

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 p etitioner

- appellant Roger Price ’s (“Price ’s ”) applic ation 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 appeal s, arguing that the state court judgment below violated the Ex Post Facto C lause of the U.S. Constitution. See U.S. Const. a rt. I, § 9, cl. 3 (“No Bill of Attainder or ex post facto Law shall be passed.”)

. For the reasons explained below, we hold that Louisia na Revised Statutes § 15: 571.4(B)(2) is void as applied to Price, whose crime occurred before its effective date. Accordingly, we United States Court of Appeals Fifth Circuit 

### FILED May 12 , 2015 Lyle W. Ca yce Clerk Case: 14-30349 Document: 00513054373 Page: 1 Date Filed: 05/26/2015No. 14

- 30349 REVERSE the district court’s judgment denying habeas relief and REMAND for the district court to order the recalculation of Pr ice’s release date.
F ACTS AND P ROCEEDINGS 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, L ouisiana 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 t he State revoked his parole

. When calculating Price’s new release date, p rison 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 co mmissioner’s report and recomm endation 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. 2 Case: 14-30349 Document: 00513054373 Page: 2 Date Filed: 05/26/2015No. 14

- 30349 petitioned the Louisiana Supreme Court for supervisor y 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

. Th e district court referred Price’s petitio n 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 g ranted Price’s request for a COA. Id

. Price appeal s to this court pro se

. D ISCUSSION 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 “g iv[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 w as “on the merits” and give deference under § 2254(d). 3 Case: 14-30349 Document: 00513054373 Page: 3 Date Filed: 05/26/2015No. 14

- 30349 United States .” 28 U.S.C. § 2254(d)(1). A st ate court’s decision is “contrary to

. . . clea rly 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 (2 000)

. 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). J ust as with the Court’s other precedential opinions, lower courts should a ssume 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)). C ontrary to the magistrate judge’s reasoning , then , s ummary 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 issu es 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 su stain 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

3 Although Price does not specify that he seeks relief under the “contrary to” standard, his appellate brief suggests t hat he seeks relief on that ground

. Accor dingly, we apply the “contrary to” standard. 4 Case: 14-30349 Document: 00513054373 Page: 4 Date Filed: 05/26/2015No. 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 C lause 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 wh ether 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 credit s 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 credit s 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

4 We refer to the lower court opinion to discern the relevant facts, but for the reasons explained above, not to consider the lower court’s rea s oning. 5 Case: 14-30349 Document: 00513054373 Page: 5 Date Filed: 05/26/2015No. 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 C lause, because the applic ation 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 ef fect 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 re ceive good

- conduct deductions.” Jurisdictional Statement, 1968 WL 129215 , a t *9 (emphasis added)

. T he Warden emphasizes that Price agreed that if he violated his parole conditions, he would forfeit good

- time credit

. We recognize the factual difference betw een tacit and express agreement , b ut “[c] onduct may often convey as clearly as words a promise or an assent to a proposed promise.” Restatement (Second) of

5 S ee 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 C lause). 6 Case: 14-30349 Document: 00513054373 Page: 6 Date Filed: 05/26/2015No. 14

- 30349 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. W e 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 h old that the state court’s judg ment was contrary to clearly established federal law as determined by the Supreme Court. Accordingly, we hold that Price is entitled t o feder al habeas relief under § 2254(d). C ONCLUSION 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 Su preme 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 c ourt’s judgment , and if so, whether those theories could be reasonably viewed as consistent with Supreme Court precedent ). 7 Case: 14-30349 Document: 00513054373 Page: 7 Date Filed: 05/26/2015