F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

J E F F R E Y J

. B I G G S ,

Petitioner-Appellant

,

v

.

S E C R E T A R Y O F T H E C A L I F O R

N I A D E P A R T M E N T O F C O R

R E C T I O N S A

N D R E H A B I L I T A T I O N , Respondent-Appellee

. N o. 11-18021

D.C. No. 2:07-cv-00470- W B S-CKD

OPI NI ON

A ppeal from the United States District Court for the Eastern District of California W illiam B . Shubb, Senior District J udg e, Presiding

Arg ued and Submitted J anuary 14, 2013—San F rancisco, California

F iled May

29, 2013

B efore: J

. Clifford W a llace, J erome F arris, and J ay S. B y bee, Circuit J udg es.

Opinion by

J udg e B y beeB I G G S V

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SUMMARY *

Habeas Corpus

The panel affirme d t h e district court’s dismissal of a 28 U.S.C. § 2254 habeas corpus petition challeng ing a 2006 decision by the Governor o f California reversing a 2 005 decision by the B oar d o f Parole Hearing s finding p etitioner suitable for parole.

A f ter petitioner’s conviction, California amended i t s constitution to g ive the Governor authority to review paroleboard decisions for pris o n ers convicted of murder. The California Supreme Court upheld th e constitutional amendment in question, Cal. Const. art. V, § 8(b), ag ainst an Ex Post F a cto challeng e. In re Rosenkra n tz , 59 P.3d 174 (Cal. 2002). Petitioner contended that In re R osenkrantz unreasonably applied Garner v

. Jones , 529 U.S. 244 (2000), which involved a similar challeng e to a Georgi a state law. The panel held that the state court’s decision w a s not an unreasonable application of clearly established federal law.

COUNSEL

Ann C. McClintock (arg

ued), Assis t a

n t F e d e r a l Defender, a

nd Daniel J

. B roderick, F ederal Defender, Office of the F ederal Defender, Sacramento, California, for Petitioner-Appellant.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.B I G G S V

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Krista L

. Pollard (arg

ued), Deputy Attorney General, Kamala D. Harris, Attorney General, J ennife r A. Neill, Senior Assistant Attorney General, J essica N. B lonien, Supervising Deputy Attorney General, Office of the Attorney General, Sacramento, California, for Respondents-Appellees.

OP INION

B YB EE, Circuit J udg e:

After J effrey J

. B ig g s was convicted of m u rder a nd sentenced to twenty -five y ears to life i n p rison with the possibility of parole, California amended its constitution to g ive the G overnor a

uthority to review parole-board decisions for prisoners convicted of murder. Cal. Const. art. V
, § 8(b). The parole board subsequently found B ig gs suitable for parole, but then-Governor Arnold Schwarz ene gge r reversed the parole b oard’s decision. B ig g s claims that retroactive application of the interim chang e to the Ca l ifornia Constitution violates the Ex Post F acto Clau s e of the U.S. Constitution. U.S. Const. art I , § 10, cl. 1.

W e previously a

naly z ed the constitutionality o f the retroacti v e application of this same provision of the California Constit ution in J o hnson v. Gomez
, where we upheld article V, § 8(b) ag ainst an Ex Post F acto Clause challeng e. 92 F .3d 96 4
, 9 65–68 ( 9th Cir. 1996). After the Supreme Court’s most recent decisi on in the area, G arner v

. Jones
, 529 U.S. 244 (20 0 0 )

, the California Supreme Court also upheld article V
, § 8(b) a g ainst an Ex Post F acto Clause challeng e. In re Rosenkrantz

, 59 P.3d 174, 191–201 (Cal. 2002).B I G G S V

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B ig g s claims that he is entitled to habeas r elief because I n

re Rosenkrantz unreasonably applied G arner in deciding that retroactive application of article V, § 8(b) did not violate the Ex P o s t Fa cto Clause of the U.S. Constitution, and the state court relied e x clusively on Rosenkrantz in deny ing B ig g s’ Ex Post F a cto Clause claim. The d istrict court d enied Bi gg s’ habeas petition. W e have jurisdiction pursuant to 28 U .S.C. §§ 1291 and 2253. W e affirm.

I

I n 1 987, B ig g s was convicted of murder and sentenced to t w e nty -five y e ars to life in prison with the possibility o f parole. 1 I n 1988, California passed Proposition 89, which added section 8(b) to article V of the California Constitution, providing the Governor with authority to review parole-board decisions in any case in which the prison e r had been convicted of murder. See Cal. Const. a r t

. V, § 8(b) (“No d e c i s i on of the p arole authority of this state with respect to the g ranting , denial, revocation, or suspension of parole of a person sentenced to an indeterminate term upon conviction o f murder shall become effective for a period of 30 day s, during which the Governor may review the dec i s i on subject to procedures provided by statute. T he Governor may only affirm, modify

, or r everse the d ecision of the parole authority

on the basis of the same factors which the parole a uthority is required to consider. The Go v ernor shall report to the L eg islature each parole d ecision a ff irmed, modified, o r

1 A m o re d etailed acco u n t o f th e f acts of B i g g s’ crim e, h is reh ab ilitatio n , an d so m e earlier p ro ceed in g s can be f o u n d in ou r p rio r p u

b lish ed o p in io n reg ard in g Big g s’ h ab eas p ro ceed in g s

. S ee Big g s v. Terh u ne , 3 3 4 F

. 3 d 9 1 0
, 9 1 2– 1 3 (9 th

Cir. 2 0 03 ), o verru l ed in p a rt b y Ha ywa rd v. Ma rsh a ll

, 6 0 3 F.3 d 5 4 6 , 5 55 (9 th

Cir. 2 0 1 0 ) (en b an c).B I G G S V

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reversed, stating th e pertinent facts and reasons for the action.”); see also Johnson

, 92 F .3d at 965. I n 2005, t he parole board determined that B i ggs w as suitable for parole. Ex ercising the authority g ranted to him under arti c l e V
, section 8(b), then-Governor S c hwarz e neg g er reversed the parole board’s decision. B ig g s unsuccessfully challeng e d the Governor’s decision throug h state habeas proceedings

. T he only state-court decision to address B ig g s’ claim under the Ex Post F acto Clause was the Superior Court’s decisi o n , which looked to the prior decision of the California Supreme Court in Rosenkrantz :

The Rosenkrantz court considered at l eng th the question of w hether the Governor’s r ev i ew and s ubsequent r e v ersal of a g rant of parole

v i olated the ex post facto clauses of the stat e and federal Constitutions. The court concluded that there was no e x post facto violation. A ccording ly

, the petition is denied as to the [ ex post facto] claim.

Order of Denial at 7, No. SC-14199A (Cal. App. Dep’t Super. Ct. Aug . 22, 2006) (internal citations omitted).

B ig g s then filed the instant federal h abeas petition. W hile this f ederal h a beas petition was p e n d i ng , the parole board
ag ain f o u n d Bi g g s suitable for parole, and this time the Governor d eclined to review the parole board’s decision. B ig g s was released on parole in A ug ust 2010, but the district
court ruled that B ig g s’ release did not render hi s h ab easB I G G S V

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petition moot. 2 The district court denied habeas relief, a nd B ig g s timely

appealed.

II

W e r e v i ew a district court’s decision to g rant or deny a state prisoner’s federal habeas petition de novo. Gill v. Ayers
, 342 F .3d 911, 91 7 (9th Cir. 2 003). B ecause B ig g s filed his feder al habeas p etition a f ter April 24, 1996, 3 the Antiterrorism and Effective Death Penalty Act of 1996 (“ A E D PA”) a

pplies. Lindh v. M

urphy

, 521 U.S. 320, 322, 327 (1997). Under AEDPA, we may o nly g rant habeas relief i f t h e adjudication of a claim on the merits in state court resulted in a state-court decision that (1) was “contrary to, o r involve d a n unreasonable application of, clearly e stablished F ederal law, as determined b y t h e Supreme Court of the United States,” or ( 2) w as “based o n a n u n r easonable

2 B ig g s seek s cred i t ag ain st h is term o f p ar o l e f o r tim e h e serv ed in
p r i s o n d u e to th e Go v ern o r’ s rev ersal o f th e p aro l e b o ard ’ s 2 0 0 5 d eterm in atio n t

h at h e w as su itab l e f

o r p aro le. B ef

o re th e d istrict co u rt, h e asserted th at th e p o ssib ility o f su ch relief m ilitated ag ain st m oo t n ess. Citin g d istrict- co u rt o p in io n s, t h e d istr ict co u rt stated th at w h eth er th e p o ssib ility

o f su ch relief p rev en ts a p aro lee’ s h ab eas p etitio n f ro m b ein g

m o o t d ep en d s o n w

h eth er th e term o f p aro le is in d eterm in ate. T h e d istrict

co u rt ex plain ed th at p aro lees w h o co m m itted t h eir crim es p rio r to Jan u ary 1 , 1 9 8 3 f ace d eterm in ate p aro le term s. On th e o th er h an d , p aro lees w h o

co m m itted th eir crim es o n o r af ter Jan u ary 1
, 1 9 8 3 are su

b j ect t o a rev i s ed

v ersio n o f Calif

o rn ia P en al Co d e § 3 0 0 0 .1
, u n d er w h ich p aro lees serv e in d eterm in ate p aro le term s u n less th ey are released f ro m p aro le. B ecau s e B ig g s co m

m itted h is m

u rd er in Sep tem

b er 1 9 8 1 an d h is p aro l e term is th u s d eterm in ate, th e d istrict co u rt h eld th at th e p o ssib ility o f p ro v id in g relief b y cred itin g t im e ag ain st B ig g s ’ p aro l e term prev en ts B ig g s’ p etitio n f ro m b ein g m o o t. T h e State d o es n o t r a i s e m o o t n ess o n ap peal, so w e d o n o t

co n sid er it.

3 B ig g s f iled h is f ed eral h ab eas p etitio n

o n Sep tem b er 2 0 , 2 0 0 6

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d e t e r mination of the facts in lig ht of the evidence presen t e d in the State c o u r t p r oceeding .” 2 8 U.S.C. § 2254(d). B ig g s

o nly challeng es the state-court decision u nder t h e “unreasonable application” clause of 28 U.S.C. § 2254(d).

Under t h e “unreasonable application” clause, we may issue the writ “if t h e s t a te court correctly identifies the
g overning leg al principle from [ the Supreme Co u rt’s] decisions b u t unreasonably a p p l i e s it to the facts of the particular case.” Bell v. Cone
, 535 U.S. 685, 6 9 4 (2 0 0 2). Even if we believe that the s tate court was incorrect in its application of Supreme Court law, w e may not g r ant the writ unless the state court’s application o f Supreme Court law was objectively unreasonable. Id. ; see a lso Harrington v. Richter

, 131 S. Ct. 770, 785–86 (201 1 ). T h is is true even if the conclusion of the state court is inconsistent with, o r even disag rees with, our own decisions. “B ecause AEDPA limits habeas r elief to state decisions that offend clearly e stablished federal law as set by the Supreme Court, a state court decision
may not be o verturned simply because of a confl i ct with circuit law.” Ortiz-Sandoval v. Clarke

, 323 F .3d 1165, 1172 (9th Cir. 2 003) ( internal quotation marks omitted); see also Marshall v. Rodgers

, 133 S. Ct. 1446, 1450 (2013) (“[ C] ircuit precedent may [ not] be u sed to ref i ne or sharpen a g eneral principle of Supreme Court jurisprudence into a specific leg al rule that th[ e] Court has not announced.”).

III

T he Ex Post F acto Clause of the U.S. Constit u t i o n prohibits the States from p a s sing any “ ex post facto L aw.” U.S. Const. art. I
, § 10, cl. 1. “I n Collins v. Y oungblood

, . . . [ the Supreme Court] r eaffirmed that the Ex Post Facto Clause incorporated ‘a term of art with an established meaning at theB I G G S V

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time of the framing of the Constitution.’” Cal. Dep’t of Corr.

v. Morales

, 514 U.S. 499, 504 (1995) (quotin g C o l lins v

. Y o ungblood

, 497 U.S. 37, 41 (19 9 0 ) )

. I n Collins

, the Court

ex p lained the orig inal meaning of the Ex Post F acto Clause: “L eg islatures may not ret roactively alter the definition o f crimes o r increase the punishment for crimi nal acts.” 497 U.S. at 43. Since Col l i n s was d ecided, the Court has addressed the bounds of the prohibition on law s that retroactively increase the punishment for criminal a cts in two

cases rela ted to increased periods b e tween p arole hearing s: (1) California D epartment o f C o r r e c t ions v. Morales

, decided in 1995, and (2) Garner v

. Jone s , decided in 2000. B ig g s points to these decisions in alleg ing that th e state-court decision in his case, a

n d t h e California Supreme Court’s decision in Rosenkrantz on wh i c h it relied, unreasonably applied clearly

established federal law.

A

Morales involved a challeng e to the retroactive application of a chang e in the California Penal Code that

au t h oriz ed the parole board to increase the g ap b etween parole suitability hearing s for individuals convicted of “more than one offense which invo l v e s the taking of a life,” from

one y ear, a s prev i ously required, to as long as three y ears. Morales

, 514 U.S. at 503–04. To justify such an increase, the parole board had to (1) find th a t it w as not reasonable to

ex p ect parole to b e g ranted during the y ears with no hearing s, and (2) state its bases for that finding

. Id. at 503.

Morales urg ed the Court to hold “that the Ex Post F a cto Clause forbids any leg islative c hang e that has any

co n c e i vable risk of affecting a prisoner’s punishment,” including the increase in the g a p b e t w e en parole hearing s atB I G G S V

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issue. Id. at 508. The Court r ejected this approach, n ot i ng that under such an approach “ the judiciary would be charg ed under the Ex Post F

a c to Clause with the micromanag ement of a n e n dless array of leg islative a d justments to parole a

nd sentencing procedures.” Id.

The Court asserted that it had “long held that the question of what leg islative adjustments will be held to be of sufficient
moment to transg r ess the [Ex Post F acto Clause] m ust be a matter of ‘deg ree.’” Id. at 5 0 9 ( internal quotation marks omitted). I n considering w h et h e r a chang e in law is

cons t i t utional under the Ex Post F acto Clause, courts “must determine whether [ the chang e] produces a sufficient r isk o f increasing the measure of p u nishment attached to the covered crimes.” Id.

The Court declined to establish a brig ht-line ru le,

a sserting that the chang e at issue in Morales did not require the Court to “articulate a sing le ‘formula’” fo r identify ing chang es in law that produce a sufficie n t r i sk of increased punishment, because the chang e at is s u e “ create[ d] 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 [ the Court] mig ht establish.” Id.

The Court justified this determination by noti n g t h a t the chang e “applie[ d ] o nly to a class o f prisoners for whom the likelihood of release on paro le is quite remote”—prisoners convicted o f multiple crimes involving the taking o f a life, id.
at 510—and that the g ap b et w e en hearing s would only be increased after the parole board held an i n i t i al hearing a nd made the requisit e f

i n d ing s to delay the nex t hearing

, id. at 511. The Court a lso noted that, in the c a se of a prisoner w hoB I G G S V

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ex p eriences “an u nan t i cipated chang e that is sufficiently monumental to alter [ the prisoner’s] suitability for r elease on parole” after having

the g ap between hearing s increased, the prisoner mig ht be able to seek an ex pedited hearing based on that chang e

. Id. at 512. F inally

, the Court noted that actual release dates often c o me s e v e ra l y ears after a finding o f suitability

, and thus that the practical effect of the increased
g ap between hearing s was not sig nificant. Id. at 513.

The Court held that becaus e the chang e in law created only “speculative and a ttenuated risk” of increased punishment, retroactive a pplication of the law did n o t violate the Ex Post F acto Clause. Id. at 514. The Court in Morales did not base i ts decision on how the chang e in law was actually implemented or applied, but r ather c o nsidered the ri s k o f increased punishment for p risoners based on a facial analy sis of the chang e in law. 4

B

Garner also involved a challeng e to the retroacti v e application of a chang e in law permitting an ex tension of the interval between p arole hearing s, this time in G eorg ia. 529 U.S. at 246. Under Georg ia law, the pa r o l e board was statutorily required to consider parole for inmates serving life
sentences first after seven y ears o f incarceration; b y rule, the parole board had p rovided that it w ould recons ider parole

4 T h e Co u rt d id say th at “ [t]h e Calif o rn ia Su p rem e Co u rt h as n o ted th at ab o u t 9 0 % o f a l l p riso n ers are f o u n d u n su itab le f

o r p aro le at th e in itial h earin g , w

h ile 8 5 % are f

o u n d u n su itab le at t

h e seco n d an d su

bseq u en t h earin g s,” Mo ra les

, 5 1 4 U .S. at 51 0

– 1 1
, b u t t h ese statistics w ere cited to

su p p o rt an aly sis o f th e l eg islativ e in t en t o f th e ch an g e in law

, n o t to d iscu ss h o w

th e ch an g e in law

w as im p lem en t ed an d th e ex ten t to w h ich th e im p lem en tatio n

resu lted in a risk

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every three y ears thereafter. Id. a t 247. After the prisoner in Garner c ommitted his crime, the parole board amended its rules so that the g ap between hearing s after the initial h earing could be as long as eig ht y ears. I d.

The prison er was denied parole in 1995, and the parole board scheduled the nex t h earing for 2003, consistent with the chang e in its rules. Id. at 247–48. The prisoner broug ht an action under the Ex Post F acto C lause, challeng ing the retroactive application of the chang e in law. Id. at 248.

The Court acknowledg ed that the retroactive application of certain laws g overning parole c o u ld unconstitutionally increase punishment under the Ex Post F acto Clause, id. at 249–50, but n o ted that Morales “emphasiz [ ed] that not every retroactive pr o c e d u r a l chang e creating a risk of affecting an inmate’s terms or conditions o f confinement is p r o hibited,” and that q u e s t ions about such chang es d epend on the “deg ree” of the risk. Id.

The Court reiterated Morales ’s messag e that “the Ex Post F a c t o C l a u s e s h o u l d n o t b e e m p l o y e d f o r ‘t h e micromanag ement of an e ndless array of leg islat ive adjustments to parole and sentencing procedures.’” Id. at 252 (quoting Morales

, 5 14 U .S. at 508). “The controlling inquiry

. . . [ is] whether retroactive application of the chang e in

. . . law created ‘a suf

f i cient risk of increasing the measure o f punishment attached to the cover e d crimes.’” Id. a t 250 (quoting Morales , 514 U.S. at 509).

I n c onducting this risk-ba sed inquiry

, derived from Morales

, the Court stated that the chang e in law at issue h ad
to be considered in “the whole contex t of Georg ia’s parole
sy stem,” id. a t 252, which p rovides the parole board withB I G G S V

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broad discretion, id. a t 252– 5 3

. The Court added that “[ w] hether r e t r o active application of a particular chang e in parole law respects the prohibition on ex post facto leg islation is often a question of particular difficulty when the discretion

v e sted in a parole board is taken into account,” id. a t 2 5 0
, even thoug h this “discretion d oes not displace the p rotections of the Ex Post Facto Clause,” id. at 2 53. “ The ess e n c e o f respondent’s cas e , ” according to the Court, “[ was] not that discretion has been chang ed in its ex ercise but that, in the period between parole reviews, it will not be ex ercised at all.” Id. at 254.

The Court, h o w e v e r , rejected this claim because (1) the parole board maintained discretio n a s t o how often to set hearing s—subsequent he a r i n g s would take place “at least
every eig ht y ea r s ” ; and (2) there were processes in place for

ex p edited reviews in cases of chang e d c i rcumstances. Id. (quoting Ga. Comp. R. & Reg s. 473-3-.05(2) (1985))

. Given this continued discretion, the Court sug g ested that the risk o f increased punishment, at least facially

, was not suffi c ient to support a violation of the Ex Post F acto Clau s e

. Id. at 254–55.

B u t the Court’s analy sis did not end there. I t went on:

W h en the rule does not by its own terms show

a sig nificant risk, the respondent must demonstrate, by evid ence drawn f rom the rule’s practical implementation by the ag ency charg ed with e x e r cising d iscretion, that its retroactive application will res u lt in a long er period of incarceratio n t h an under the earlier rule.

. . . I n the case before [ the Court]
, respondent must show th a t as applied to hisB I G G S V

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own sentence the law created a sig nificant risk of increasing his punishment. T his remai ns the issue in the case, th o u gh the g eneral operation of t he Georg ia p arole sy stem may produce relevant evidence and inform f urther analy sis on this point. . . .

The Court of A ppeals’ a naly sis failed to reveal whether the a mendment

. . . , in its operation, created a sig nificant r isk o f i n c r e a s e d p u n i s h m e n t f o r r e s p o n d e n t

. Respondent claims he has not been permitted sufficient discovery

to make this showing

.

Id. at 255–57.

The Court stated that the “matter of adequate discovery ”

was one f or the lower courts, and according ly remanded. Id.
at 257. The Court in Garner thus applied the risk-based test from Morales

, b ut did not stop with fac i a l a n a ly sis as in Morales. I nstead, the Court asserted that prisoners could demonstrate the sig nificance o f the risk of increased punishment throug h evidence of the implementation of the chang e in law, and tha t t h e prisoner was entitled to f urther discovery to support such a demonstration. I t is this Supreme Court endorsement o f an as-applied analy si s o f the sig nificance of th e risk of increased punishment that B ig g s claims the state court unreasonably applied—or, r eally

, failed to apply —in his case.

IV

W h ere, as here, the state’s hig hest court does not issue a reasoned decision, we must look to the last reasoned sta t e-B I G G S V

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court decision and then determine if that decision runs afoul of 28 U.S.C. § 2254(d). Y lst v. Nunnemaker

, 5 01 U.S. 797, 804–06 (1991). As discussed a bove, the only reasoned statecourt d ecision with reg ard to B ig g s’ claim under the Ex Post Fa ct o C l a u s e was the Superior Co u r t ’ s d e ci s i o n , which—understandably

—reli e d e xc l u s i v e l y o n t

h e California Supreme Court’s decision in Rosenkran t z

. T hus, w e must

ex a mine R o senkrantz to determine whether the Superior Court’s decision unreasonabl y applied clearly e stablished federal law.

I n Rosenkrantz , the California Supreme Court was faced with precisely the same question w e face: whether retroactive application of g u

bernatorial review under article V, § 8( b )

v iolates the Ex Post F acto Clause of the U.S. Constitu t i o n

. 59 P.3d at 183. The Rosenkrantz co u r t , analy z ing Morales and Garner
, held that California’s scheme did not violate the Ex Post F acto Clause. Id.

F irst, the court said that under the o r dinary meaning o f the phrase “increased the punishment,” it could not be reasonably said that the g ubernatorial reversal violated the Ex Post F acto Clause. Id. at 193. The court emphasiz ed that the term of the petitioner’s sentence was the same before and after the implementation of review, a n d that the factors to be considered in determi n i n g whether to g rant parole were left unchang ed. Id. “The only c h a n ge e ffected

. . . is the institution of a

n additional level o f d iscretionary r eview of the B oard’s d ecision g ranting o r d eny ing parole, resulting merely in a cha n ge in the identity o f the entity or official within the

ex e c utive branch that may make the u ltimate decision on parole.” Id.B I G G S V

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After pointing o ut that the Supreme Court had never h eld

a chang e in law comparable to the institution o f g u bernatorial review of parole decisions to constitute “the ty pe of measure to which the ex post facto clause applies,” id. at 193–94, the
court e x plained that the p e titioner’s claim had been “squarely and uniformly rejected by each of the prior Californ i a a nd federal decisions that have addressed the issue

. ” Id. at 194. I n support, the court cited our decision in Johnson v. Gomez
, and the C al i fo r n ia Court of Appeal’s decision in I n re Arafiles

, 8 Cal. Rptr. 2d 492 ( C t

. App. 1 992)

. Rosenkrantz

, 59 P.3d at 194–95.

Rosenkrantz asserted that these cases were inconsistent with the Supreme Court’s ruling in G arner , which p ostdated both decisions. Id. at 196. B u t the court rejected this
arg ument, stating that “ Garner did not involve a leg islative o r

c onstitutional provision e v en remotely similar to article V
, section 8(b), and nothing in Garner q uestions either the validity of the Arafiles and Johnson decisions themselves or the h ig h c ourt decisions upon which [those decisions] relied.” Id.

I n dist i n guishing the Ex Post F acto Clause challeng e in Garner from Rosenkrantz ’s ch a l leng e to the retroactive applicati o n o f g

u b ernatorial review, the court emphasiz ed that in Garner the Supreme Court had “ e x plain[ ed]

. . . [ that t] he

essence of respondent’s case

. . . [ was] not that discretion [ relating to the g rant of parole] has been chan ge d i n its

ex e r cise but t h at , in the period between parole reviews, [ discretion] will not be ex ercised at all.” Id. at 198 (quoting Garner
, 529 U.S. at 254) (emphasis and internal qu o tation marks omitted). Even in this limited situation—where retroactive application o f a chang e in law results in the parole board not ex ercising its discretion at all for a time—the CourtB I G G S V

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in Garner r ejected the facial Ex Post F acto Clause challeng e

. See id. at 198–200 (citing Garner
, 529 U.S. at 2 54–55). B ut, the Rosenkrantz court acknowledg ed, the Court i n Garner
, throug h the lang uag e at the end of its opinion, “left open the possibility that the petitioner in that c a s e could establish on remand that the new policy permitting the s i g nificant postponement of parole hearing d ates should be treated as an increa s e i n p u nishment for purposes of the ex post facto clause.” Id. at 198–99; see Garner , 529 U.S. at 255.

B a sed on the lang uag e at the end of the Garner opinion, Rosenkrantz contended that “whether the a pplication o f

a r t i c l e V
, section 8(b), in [ his] case

. . . violates the ex p o s t facto cl au s e turns upon whether ‘application [of the provision] will result in a long e r period of incarceration than under the earlier rule.’” R osenkrantz

, 59 P.3d at 1 99 (quoting Garner
, 529 U .S. at 255). T he Rosenkrant z c o u rt said that such a reading of Garner would mean that “article V, section 8(b)[ ] would violate the ex post facto c lause in every case in which the G o v ernor reverses a B oard decision g ranting parole.” Id. Moreover, the court s ai d

, w e re Rosenkrantz ’s reading of Garner to be accepted, “virtually any procedural

c h ang e in the parole process

. . . would fall withi n t h e prohibition of the ex post facto c l a u s e in any instance in which the procedural chang e resulted in the denial of parole,” because “ in any such case it could be said that application o f the new rule ‘will result in a long er period of incarcerati o n than under the earlier rule.’” I d. (quoting Garner
, 5 2 9 U.S. at 255).

This result, the Rosenkrantz court stated, demo n s trates that such a broad reading of G arner cannot be correct; n or is i t correct even to read Garner to apply to all proce d u ra l

c h a n ges in law that could affect the duration o f prisone rs ’B I G G S V

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imprisonment. I

d. at 199–200. Rather, G a r n er ’s concern with the impact of a procedural rule in a particula r c a se was limited t o c h a n ges of the sort at issue in Garner
, and there

was g ood reason to disting ui s h t h a t sort of chang e from the chang e at issue in Rosenkrantz :

A revision [ like those in G arner a nd Morales ] that sig nificantly delay s the date when the relevant state authority c onsiders the parole elig ibility of a prisoner is analog ous to a substantive p rovision incre a s i n g t h e minimum period of time a defendant must be imprisoned before parole even may be considered. (As we have seen, the court in Garner adverted to this point, ex plaining that “[ t] he essence of respondent’s c a se, as we see i t, is not that discretion h as b een chang ed i n its ex ercise but that, in the period bet ween parole reviews, it w i ll not be ex ercised at all.”).

B e cause a provision that reduces the frequency of parole hearing s is at least potentially comparable to a provision that increases the minimu m t e rm o f a sentence, a

measure that e x tends the time between parole hearing s is one that reason a b l y mig ht be characteriz ed as bring ing about an increase in
sentence to w hich the e x post fac t o clause mig ht apply

. . . . [ T] he court in Garner determined that when such a provision “does
not by its own terms” create a sig nificant risk that a p risoner’s sent e n ce will be increased, the prisoner may establish that application o fB I G G S V

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the provision w ill vi o late the e x p ost facto clause, by demonstrating throug h “ev i d e nce d r a w n f

r o m t h e r u l e ’ s p r a c t i c a l i mplementation

. . . that [ the rule’s]
ret r oactive application will result in a long er period of incarceratio n t h an under the earlier rule.” T h ere is nothing in Garner
, however,
sug g esting that this standa r d was intended to apply t o a provision, u nlike a measure reducing the frequency of p arole hearing s, t h at c annot reasonably b e viewed as falling within the categ ory of leg isla t i v e measures that increase the punishment for a crime.

Id. (quoting Garner
, 529 U.S. at 254–55).

The Rosenkrantz c ourt w ent on to r eiterate that “[ t] he only chang e made by article V, section 8(b), is the institution of a new level of review o f parole decisio n s

. ” I d

. at 200. “[ T] he o pinions of the United States Supreme Court make it clear that this type of c hang e in procedure i s not the ty pe o f chang e addressed by the ex post facto c la u se,” and G arner does not question these decisions. I d.

One of the Supreme Court cases cited by the c ourt in
supp o r t o f this position—one of the cases the court said Garner did not quest ion—is Mallett v. North Carolina

, 181 U.S. 589 (1901). I n M allet

, two defendants convicted in

a state criminal t rial had succeeded in having their convictions overturned on appeal in favor of a new trial. Id.

a t 590. At the time of the commission of the defe n d a n t s ’ offense and at the time of their trial, the State had no rig ht to

a ppeal such a decision under state law, but by the time the defendants won their a

ppeal, the state law had chang ed, a ndB I G G S V

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the State appealed t he r eversal and o rder for a new trial. Id. The sta t e s u preme court sustained the State’s appeal, remanding for ex ecution of the orig inal g uilty verdict, id.

, a nd
t h e defendants appealed to the Supreme Court, arg u ing t h at their rig hts had been violated under the Ex Post F acto Clause, id. at 592. Citing to a l ine of c ases that disting u ished “procedural” chan ge s i n law—to which the Ex Post F acto Clause did not apply

—from the chang es in law to which the Ex Post F a cto Clause was a p plic a b l e, the Supreme Court

r ejected the defendants’ claim. I d. at 593–97. Tho u gh Collins subsequently d ismissed the notion that laws could be ruled outside the purview of the Ex Post F acto Clause merely because they had been labeled as “procedural” and overruled

c e r t a i n prior Supreme Court c ases that applied that ty pe o f analy sis, 4 97 U.S. at 45–52, Collins did not overrule Mallett

ev en thoug h it identified Mallett as a case that applied the ty pe of analy sis being dismissed, id. a t 45.

The Rosenkrantz c ourt d e s c ribed the Supreme Court’s Mallett d ecision as holding that “the ty pe o f procedural provision involved in that case—i.e.

, t he addition of a new level of review of a d ecision favorable to a criminal defendant that could work to the defenda n t ’ s d e t riment

. . . — was not the ty pe of procedural chang e that f ell within the aeg is of the

ex post facto clause.” Rosenkrantz

, 5 9 P.3d at 194. Since the Rose n k r antz c ourt c o ncluded that the c hang e in question— like the c hang e in Mallett —was not the ty

pe of procedural chang e addressed by the e x p ost facto clause, it asserted that the n ature of the implementation of g ubernatorial r eview wasB I G G S V

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irrelevant, and Rosenkrantz ’s Ex Post F acto Clause c laim h ad no merit. Id. at 200–01. 5

V

B ig g s essentially makes o n e a rg ument: that it was an unreasonable appl i c a

t i on of clearly established federal law for the Rosenkrantz court to conclude that the introdu ction o f
g ubernatorial r eview of parole decisi o n s was not the ty pe o f chang e addressed by the Ex Post F a cto Clause and thus not the ty p e of chang e to which the as-applied “sig nificant risk”
test endorsed in G a r n er must be applied, and that it was therefore an unre a sonable application of clearly e stablished federal law for the state court in B ig g s’ case to rely

ex c lusively

on Rosenkrantz

. 6 W e disag r ee.

5 T h e Ro sen kra ntz co u

rt n o t ed at th e o u tset t

h at Ro sen k

ran tz w as n ot in th e b est p o s itio n to ch allen g e g u b ern ato rial r e v iew b ecau se th e paro le b o a r d h ad

, lef

t to its o w

n d ev ices, co n clu d ed th at Ro sen k ran t z w as n o t

su ita b l e fo r p aro l e. 5 9 P .3 d at 1 9 1. It w as o n ly af ter a Calif

o rn ia co u rt f o u n d th at th e p aro le b o ard ’ s d ecisio n w as n o t su p p o rted b y ev id en ce an d

o rd ered th e p aro le b o ard to g ran t p aro le u n d er th e th reat o f co n tem p t th at th e p aro le b o ard d id so

. Id

. T h e co u rt said : “ A cco rd in g ly

, f ro m a realistic
p ersp ectiv e, p etitio n er can n o t m ain tain p ersu asiv ely th at in th i s i n stan ce article V, sectio n 8 (b ), h as resu lted in th e d en ial o f p aro le o f an i n d iv id u al

w h om th e B o ard

, in th e ex ercise o f its in d ep en d en t j u d g m en t, h a s d eterm in ed is su itab le f o r p aro l e.” Id

. T h e co u rt’ s d ecisio n on Ro sen k ran tz’ s Ex P o st Facto Clau se ch allen g e, h o w ev er, d id n ot t u rn o n th is u n iq u e f

actu al circu m stan ce. Im

m ed iately f

o llo w in g th e discu ssio n

o f Ro sen k

ran t z’ s u n i q u e circu m stan ce, th e co u rt said th at “ [t]h e f law in
p etitio n er’ s ex p o st f

acto claim

. . . is n o t co n f in ed to th e p articu lar circu m s tan ces o f

th is case.” Id

.

6 B ig g s also arg u es th at it w as u n reaso n ab le f or t h e S u p e r i o r Co u rt to rely o n th e Ro sen kra n tz d ecisio n in h i s case b ecau se o f f actu al d if f eren ces b etw een th e tw o cases. P articu larly

, B ig g s arg u es th at it w as u n reaso n ab le f o r th e state co u rt to rely o n Ro sen kra n tz becau se, as d iscu ssed ab o v e, seeB I G G S V

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A

W e are not writing on a b lank slate. W e previously held in Johnson v

. Gomez that article V, § 8(b) does not violate the Ex P o s t Fa ct o Clause. 92 F .3d at 967. I n Johnson

, we

r e v iewed relevant Supreme Court decisions on the Ex Post F acto Clause, including Calder v. Bull

, 3 U.S. ( 3 D all.) 386 (1798); Mallett

, 181 U.S. 589; Collins , 497 U.S. 37; and the then-recent decision in Morales

, 514 U.S. 499. 9 2 F. 3 d at 966–67. J ohnson arg ued th a t the g u bernatorial r eview provision had “the purpose and effect of

. . . leng then[ ing ]
p r i son terms by making it more difficult for convict e d murderers with indete r minate sentences to be released on parole.” Id

. at 967. W e rejected this arg u ment. W e observed that “the law itself is neu t ral inasmuch as it g ives the
g overnor power to either affirm or reverse a [ parole board] ’s
g ranting or denial of parole.” Id. The law “simply removes the final parole decisionmaking authorit y f r om the [ parole board] and places it in the hands of the g overnor.” Id. This chang e in California law, we c oncluded, could not be “materially disting uish[ ed] ” from the chang e in law at issue in Mallett

. Id. ; see also Rosen k r a n t z , 59 P.3d at 200 & n.9 (reaching a similar conclusion). W e thus concluded that the

su p ra n o te 5, t

h e p aro le b oard o n ly f

ou n d Ro sen k

ran tz su itab le f

o r paro le af ter ord ered to do so b y th e co u rt, n o t b ased o n its o w n in d ep en d en t

rev iew

. T h is arg u m en t is a n o n

- s tarter. First, it is h ard to co n stru e th is as

a co g en t arg u m en t u n d er 2 8 U.S.C. § 2 2 5 4 (d ). T h e Su p erio r Co u rt su

rely d id n o t v io late clearly estab lish ed f ed eral law b y f

o llo w in g a C alif

o rn ia Su p rem e C o u rt d e c i s io n th at w as m aterially o n all f o u rs f actu ally

. Seco n d

, t h e Ro sen kra ntz co u rt s p ecifi c a l ly said its d ecisio n w as n o t lim ited to cases w

h ere th e p aro le b o ard h ad n o t f o u n d th e p riso n er su itab le f o r p aro le b ased o n i ts o w

n in d ep en d en t rev iew

, see su p ra n o te 5
, so th is f actu al d istin ctio n d o es n ot raise q u estio n s ab o u t relian ce o n Ro sen kra n tz

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g ubernatorial review p rocess did not violate the Ex Post F acto Clause. Johnson , 92 F .3d at 967.

W e decided Joh nson in the y ear AEDPA became effective, and our decis i o n was n ot constrained b y AEDPA. Our decision in Johnson was thus a straig ht-up decision on the constitutionality o f article V, § 8(b) unde r the Ex Post F acto Clause. That makes i t a far more powerful judg ment than if we h ad merely opined u n d er A EDPA that the California courts had n o t violated cle a rly e stablished Supreme Court precedent.

B u t i t is also true that we decided Johnson before the Supreme Court issued its decision in Garner

. Under our lawof-the-circuit r

ule, we are b ound b y J o h n son unless it is “clearly irreconcilable” wi th intervening Supreme Court precedent. See M

iller v. G ammie
, 3 3 5 F .3d 889, 899–900 (9th Cir. 2003) (en banc). According ly

, w e m u st determine whether o ur d ecision in Johnson is clearly irreconcilable with Garner
, and particularly with Garner ’s a p p a r e n t endorsement of as-applied a

naly sis. 7 I f so, we must “reject [ J o h n son ] a s

7 I n J o h n so n , in ad d itio n t o th e arg u m en ts d iscu ssed ab o v e, w e

su g g ested th at th ere w as n o Ex P o s t Facto Clau se v io latio n becau se (1 ) i t

co u ld n o t be said “ w ith

certain ty ” th at J o h n so n ’ s sen t en ce w as in creased b y th e g u b ern ato rial rev ersal; an d (2 ) J oh n so n w as u n ab le to d em o n strate th at an in crease in p u

n ish m en t “ actu ally o ccu rred .” 92 F.3 d at 9 6 7. T h is lan g u ag e m ig h t b e read to su g g est th at m ore certain ty w as r e q uired th an th e “ su f f i ci e nt ” o r “ sig n if

ican t” risk co n t em

p lated in Ga rn er

. Ga rn er , 5 2 9 U.S. at 2 5 0
, 2 5 5

– 5 7

. B u t w e can n o t say th at Jo h nso n i s “ clearly irreco n cilab le” w ith Ga rn er o n th is b asis g iv en th at G a rn er d id n o t alter th e lev el o f certain ty req u ir e d b y M o ra les

, see 5 1 4 U.S. at 5 0 9 ; see a l so Himes v. Th o mp so n , 3 3 6 F.3 d 8 48
, 85 5 n .4 (9 th Cir. 2 0 0 3 ) (an aly zin g an A EDP A

- g o v ern ed Ex P o st Facto Clau s e claim u n d er Mo ra les

, b u t n o tin g th at “ ou r an aly sis is also co ns i s t e nt w i th Ga rn er v. Jo n es ”), an d t h at th e Jo h n so n co u rt w as in terp retin g Mo ra les

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having been e ffectively o verruled;” i f n o t, we are bound b y Johnson

. Id. at 900.

No t h i n g in Garner sig nals that it is a chang e in the Court’s a pproach. I t does not overrule o r even question any prior Ex Post F acto Clause decisions, and it c ites ex tensively
to Morales. See Himes
, 336 F .3d at 855 n .4. Quoting Morales

, G arner emphasiz ed that “the Ex Post Facto Clause should not be emp l o y ed f or ‘ the micromanag ement of an endless array of leg islative a djustmen ts to parole a nd sentencing procedures.’” 529 U.S. at 2 52 (quoting Morales

, 514 U

. S

. at 5 08). The Court declared that this remained an “important concern[ ] .” Id.

On its face, the l a n guag e in G arner reg arding the asapplied inquiry tells u s no t h i n g about the scope of its applicability

. Garner certainly does not say th a t t h i s asapplied analy sis must b e conducted e ven w i t h r e g ard to chang es in law that have h istorically been considered outside the reach of the Ex Post F acto Clause. Se e R o s e n krantz

, 59 P.3d at 198–201 (discussing G arner ). A s Rosenkra n t z cog ently ex plained, the Supreme Court’s 1901 dec i s i o n in Mallett is still g ood law—in fact, it was ex plicitly considered by the Court in Collins but left undisturbed while other cases

were overruled—and Mallett strongly sug g ests that the ty pe of chang e in law at issue here cannot y ield c o gn iz able Ex Post F a c t o Clause c laims. Id. at 200 & n.9; see also id. at 194. To the ex tent the G arner o pinion includes lang uag e that

can be interprete d as b eing relevant to the scope o f applicability of the as-appl i e d requirement, that lang uag e

o th erw i se clearly irreco n cilab l e w ith Ga rn er , w h ich

, as w e ex p lain l ater in th is S ectio n V.A
, w e d o n o t, w e can n o t , as a th ree- j u d g e p an el, d ecid e th at Jo h n so n m isin terp reted Mo ra les

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sug g ests a limited scope. Particularly

, the Court asserted that “[ t] he essence of respondent’s c ase

. . . [w a s] not that discret ion has been c h a

n g e d in its ex ercise but that, in the period between parole reviews, it will not be ex ercised at all.” Garner
, 5 29 U.S. at 254. The Rosenkrantz court’s reading o f this statement as indicative o f the Court drawing a line between chang es in law that are “potentially comparable to a provision that increases the minimum term of a sentence” a nd chang es in law that are not comparable to such a provision is quite reasonable. See R osenkrantz , 59 P.3d at 200.

B ig g s can o nly point to the Court’s sug g estion in G arner that “[ w ] h e n the rule d o es not b y its own terms show a sig nificant risk, the [ petitioner] must demonstrate, b y evidence drawn from the rule’s p ractical im p l e mentation b y the ag ency charg ed with e x ercising discretion, that its retroactive application w ill result i n a long er period o f i n c a rceration than under the earlier rule.” 529 U.S. at 255. B ut, as discussed above, the scope of appl i c a bility of this
sug g estion is entirely u nclear. Other tha n t his sug g estion, Garner was just following Morales

. Johnson

, which a pplied Morales

, is thus not “clearly irreconcilable” with G arner on account o f o u r failure in Johnson to conduct as-applied analy sis. See Miller

, 335 F .3d at 900. Johnson remains g ood law.

B

Even thoug h Johnson remains g ood law, w e could potentially be bound to hold that Garner clearly est a b lished

a requirement of as-applied analy sis in a c ase like B ig g s’ case if a prior decision by a p a n e l of our court had so held. Thoug h our panel opinions do n ot them s e l v es constitute “clearly established F ederal l aw” f or AEDPA purposes, weB I G G S V

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would be bound to r es p ect a panel holding that the requirement of as-app l i ed a n aly sis is clearly e stablished Supreme Court law in a g iven contex t, just like we would be bound to respect any o t h er p anel holding

. See Rodgers

, 133 S. Ct. at 1 4 50 (asserting that, for purposes o f d etermining the ex tent o f “clearly established F ederal law,” “an appellate panel may , in accordance with its usual law-of-the- c i r c uit procedure s , l o o k to c ircuit precedent to ascertain whether it has already h eld that the p ar t icular point in issue is clearly established by Supreme Cou r t precedent”); Chambers v

. Mc Daniel

, 549 F .3d 1191, 1199 (9th Cir. 2008); see also Miller

, 3 3 5 F .3d at 899–900. W e cannot elevate our o wn prece d e n t “to refine or sharpen a g eneral principle o f Supreme Court jurisprudence into a specific leg a l rule th at th[ e] Court has not a

n nounced,” Rodgers

, 133 S. Ct. at 1450, but we would owe deference to a clear on-point holdingthat as-applied analy sis is required unde r clearly e stablished federal law in this contex t.

W e have discussed G arn er ’s requirement of as-applied analy sis in various contex ts, including

, most notably

, in two AEDPA-g over n e d habeas cases w here we g ranted h abeas relief based o n the petitioners’ Ex P o s t F acto Clause challeng es t o the retroactive application of chang es to Oreg on’s parole sy stem.

I n Himes v. Thompson

, w e considered an AEDPAg overned habeas challeng e to the retroactive application o f
two chang e s to Oreg on’s parole reg u lations: (1) a chang e in the list of factors to be considered in deciding whether there

was “ag g ravation” such that rerelease should be denied a fter a prior revocation of parole, and (2) a chang e in the possible reincarceration periods r esulting fro m a denial of rerelease based on an “ag g ravation” finding

. 336 F .3d at 8 55–64. W eB I G G S V

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held that retroactive a

pplication of these two chang es, ta k en tog ether, created a sufficient ris k o f increased punishment that the state court’s decision that there w as no Ex Post F acto Clause violation was an unre a s o n a ble application of clearly established Supreme Court law, and according ly we g ranted the habeas petition. Id. at 863–64. Our analy sis, h o w e ver,

was ex plicitly f

a c i a l i n nature. Id. at 855 n.5 (“B ecause we hold that the risk of in c r e as e d punishment is facially apparent, we do not consider [ a n as-applied c laim] .”). Moreover, we specifically said that, thoug h our opinion was “consistent with Garner ,” we were n o t apply ing G arner b e cause “ [

p ] re-Garner principles

. . . c ompel[ led] t h e resolution of th[ e] case.” Id. at 855 n.4.

I n Brown v. Palmateer

, w e considered an AEDPAg overned habeas challeng e to the retroactive application of a chang e to a

n Oreg on statute that al t ered the method a nd standard for the parole b oard’s consideration of postponing a prisoner’s parole date based on psy cholog ical i s sues. 379 F .3d 1089, 1094–96 (9th Cir. 2004)

. I n discussing the “sig nificant risk” test established b y M orales

, we said that “[ t] he Supreme Court teaches us to e x a m ine the retroactive
statute both on its face and in real-world practice,” citing the lang uag e at the end of the Garner o pinion. Id. at 1095 (citing Garner
, 529 U.S. at 255). W e added that “[ w] e ha[ d] previously s t a t e d that in the absence of a disadvantag e that affects prisoners in g eneral, ‘an individual will satisfy t he detriment requirement if he shows that it can ‘be said with assurance’ that h e w ould have receive d l ess severe punishment under the prior scheme,’” quoting our decision in Nulph v. Faatz
, which p redates both M orales and Garner

. Id. (qu o t i n g Nulph v. Faatz
, 27 F .3d 4 51, 456 (9th Cir. 1994)). W e then held that the chang e in law f a c i ally violated the Ex Post F acto Clause. Id. ( “W hen compared in toto w ith the pre-B I G G S V

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1993 v ersion of § 144.125(3), the post-1993 statute creates a sig nificant risk that prisoners wi ll face long er periods o f incarceration.

. . . The new standard g ive s t h e B oard the discretion to find t h at a prisoner is a dang er to the community despite the contrary c o n c l u s i o n s o f a psy cholog ical/psy c hiatric evaluation. This creates a ‘sufficient risk’ of increased punishment to constitute violation of the Ex Post F acto Clause.”). Apply ing Nulph

, we added that “[ h ] a d the B o a r d applied the pre-1993 version o f the statute,

. . . [ i] t can ‘be said with a ssurance’ that B rown

wo u l d h ave had a shorter period of incarceration.” Id. (quoting Nulph

, 27 F .3d at 456) (internal quotation marks omitted).

Thoug h we discussed Garner in g ranting habeas p e titions in AEDPA-g overned cases in H i mes and Brown
, in neither

case did w e hold that the as-applied an a l y s is endorsed in Garner is r equired under clearly established law in a c ontex t like B ig g s’ case. F irst, we did not even hold t h a t Ga r ner ’s as-applied analy sis was required u nder clearly establi s h e d law for chang es in law like the chang es at i s s u e in Himes a nd Brown

. I n Himes
, our analy sis was f a cial in n ature and we specifi c a l l y asserted that w e were n ot apply ing Garner

. 336 F .3d at 8 55 nn.4–5. I n Brown
, thoug h we said that the Supreme Court teaches us t o c onsider the “sig nificant risk”
test both “on its fac e a n d in real-world practice,” we only considered that te s t f

acially

. 379 F .3d at 1095. W e added that it could “ be said w ith assurance” that B rown would have had a shorter period of incarceration under t h e p r ior v ersion of the statute, but in makin g t h i s statement about the asapplied impact of t h e retroactive application of the new

v e r s i on of the statute, we were apply ing Nulph

, not t h e “sig nificant risk” test. See id. Second, even if we had h eld that Garner ’s as-applied analy sis was required under clearlyB I G G S V

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established law for chang es in law like the chang es at issue in Himes and B rown , that would not be b inding here, g iven the
nature of the chang e in law at issue. The chang e in law at issue here, unlike the changes at issue in Himes and Brown
, is a purely p rocedural chang e to the manner in which parole decisions a

re made. More over, the chang e in law at issue here implicates Mallett ; the chang es at issue in Hi me s a nd Brown did not. A holding that as-applied analy sis is r equired under clearly established federal law for a chang e in law like the chang e a t i s s ue in Himes or Brown
, if such a holding

ex isted, could be—and should be—disting uished with reg ard to the chang e in law at issue here.

Other cases where w e have discussed Garner fall short o f holding that as-applied analy sis is required under clearly established federal law, in B ig g s’ case or otherwise. I n Scott

v. Baldwin

, a habeas challeng e was b r o u gh t concerning the retroactive a

pplication of a chang e in O r e gon law that resulted in fewer parole-board reviews for inmates labeled a s d a ng e rous offenders. 225 F

. 3d 1020, 1021–23 (9th Cir. 2000). The case was not g overned by AEDPA. See id. W e noted the S u preme Court’s endorsement of as-applied analy sis in Garner
, but stated that “Scott’s a rg ument is limited to a facia l c h a l l e ng e of the rule,” and thus that “any
arg ument that the p ractical impleme ntation of the rule disa d v an t a ges Scott is not before us.” Id. 1 022 a t n.5. B ecause Scott was not g over n ed by A EDPA, our discussion of Garner ’ s e n d orsement of as-applied analy sis could not amount to a c o n c l usion that such analy sis is required under clearly established federal law under 28 U.S.C. § 2 2 54(d)(1). Moreover, a

ny such c onclusion w ould be dicta g iven that no

as- a p p l ied challeng e was before us. F urther, even if there

were a holding that as-applied analy sis is required under clearly established federal law, we would not be b oun d b yB I G G S V

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such a holding here g iven the different contex t, as discussed above in reg ard to Himes a nd B rown

.

I n Moor v. P a l m e r , w e r ejected, under A EDPA, an Ex Post F acto Clause challeng e to the retroactive application of

a law broadening the requirement of psy cholog ical review a s

a precondition for parole. 6 03 F .3d 658, 662–66 (9 t h Cir. 2010). A fter concluding that Moor had failed to demonstrate

a facial Ex Post F acto Clause violation, we noted Garner ’s endorsement of as-applied analy sis. Id. at 666. W e a sserted, however, that “Moor e x p ressly arg ue[ d] that f urther fact f i n d i ng [wa] s unnecessary , choosing to rest h is e x post facto claim on a facial challeng e to the statute.” Id. Even if

we were to construe Moor as asser t i n g t hat G arner clearly established a requirement of as-applied analy sis in some cases, w e w ould not be bound here b ecause, as in Sc o t t : (1) that assertion would be dicta g iv e n that n o as-applied challeng e was before us, and (2) even if it were a holding

, we

w ould not be bound b y that holding g iven the di ff e re n t contex t.

F inally

, in Gilman v. S

chwarzenegger

, we said that the plaintiffs could succeed on their Ex Post F acto Clause claim throug h an e videntiary d e monstration that retr o active application of th e c hang e in law in question would result in increased incarceration time, citing G arner . 638 F .3d 1101, 1106 (9th Cir. 2011). B u t Gilman was a § 1983 case, id. at 1105, and thus contained no holding about clearly e stablished federal law.

Thus, because none of our cases discussing Garner hold tha t a s -applied a

naly sis is required b y clearly e stablished federal law, we have no reason not to follow Johnson

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C

Our Johnson decision undermines B ig g s’ arg u m e n t that Rosenkrantz

, and thus t h e S u p erior Court’s opinion in his
case, unreasonably applie d clearly established f ederal law. As we have noted, u nder AEDPA, a bare conflict between a
state-court d ecision and our precedent does not mean that the
state-court decision is an unreasonable a pplication of clearly

es t a blished federal law; a state-court decision does not have
to y ield to our decision unless o ur decision itself rests on clearly established Supreme Court p recedent. S ee Rodgers

, 133 S. Ct. at 1450–51. B ut when a state court d ecision is consistent with our precedent, our precedent must be taken a s persuasive evidence that the s t ate-court decision is correct;

more importantly

, w h e n a state court’s application o f Supreme Court law is the sa m e as our application, our precedent must be accepted as conclusive proof that the statecourt decision is n ot an “unreasonable application of[ ]

c learly established F ederal law, as determined by the Supreme Court,” 28 U .S.C. § 2254(d)(1), u nless we a re prepared to “reject [our precedent] as having been effectively overruled.” Miller

, 335 F .3d at 900. As discussed above, we

see no reason to reject or not f o l low Johnson

, so we cannot conclude tha t the state court here unreasonably a pplied Supreme Court law in c oming to the same conclusion we reached in Johnson for materially cong ruent reasons.

Moreover, even if we were not bound b y Johnson

, for larg e ly the same r easons that Johnson is not clearly irreconcilable with Garner
, Rosenkrantz is n o t an

unreas o nable application of clearly established federal law under Garner

. The lack of clarity in G arn e r itself pervades both inquiries. Garner tells u s nothing a bout the scope of the applicability of any r equirement o f as-applied analy sis, so,B I G G S V

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just as w e c ould not say that J o h nson is clearly irreconcilable with Garner
, we cannot say that the state court unreasonably applied Garner in B ig g s’ case.

I t is true that “the lack of a Supreme Court decision o n nearly identical facts does n ot by itself mean that there is no clearly e stablished federal law,” Rodgers

, 133 S. Ct. at 1449 (citing Yarborough v. Alvardo

, 541 U.S. 6 52, 6 64 (2004)), but there is more than a mere f a c tual d istinction here. Mallett is implicated here where it was not in Garner ; and, as the Rosenkr a n t

z court reasonably asserted, the chang e in law at issue h ere is disting uishable from the c hang es in law a t issue in Garner and M

orales and indisting uishable from the chang e at issue in M

a l lett

. W hether or not the lang uag e in G arner

can be interpreted as b roadly requiring as-applied analy sis o r not, there is no question that it can reasonably be interpreted

as requiring no such analy sis in the present case. Thus, even in the absence of Johnson

, we w ould f i n d n o AEDPA violation here.

VI

The Supreme Court did not clearly est a blish in G arner that an a s-applied a naly sis of the sig n ificance of the risk o f i ncreased punishment is required with reg ard to th e retroactive application of a chang e in law like California’s
g ubernatorial review o f parole board decisions. T he California Supreme Court’s d ecision in R osenkrantz was thus
not an unreasonable a

pplication o f clearly established federal law, and neither was the Superior Court’s decision in B ig g s’ case that relied on it.

AF F IRMED.