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 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 

United States Court of Appeals

Fifth Circuit

FILED

May 12, 2015

Lyle W. Cayce

Clerk

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No. 14-30349

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 

3 Although 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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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 

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 reasoning.

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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 postenactment 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).

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