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Name: Biggs v. Sect. of the Cal. Dept. Corrections
Case #: 11-18021
Court: US Court of Appeals
District 9 Cir
Opinion Date: 05/29/2013

Retroactive application of amendment to California Constitution, which gives the Governor authority to review parole board decisions, does not violate ex post facto clause of the U.S. Constitution. After Biggs was convicted of murder and sentenced to 25 years to life in prison, the California Constitution was amended to give the Governor authority to review parole board decisions for inmates convicted of murder (Cal. Const. Art. V, § 8, subd. (b)). After Biggs was found suitable for parole, the Governor reversed the board’s decision. Biggs appealed, claiming that retroactive application of the change in procedure violated the ex post facto clause of the U.S. Constitution. Held: Affirmed. Biggs argued that the California Supreme Court opinion in In re Rosenkrantz (2002) 29 Cal.4th 616 unreasonably applied clearly established federal law in concluding that including the Governor in the parole review procedure was not the type of change addressed by the ex post facto clause and by not applying the “significant risk” of increased punishment test discussed in Garner v. Jones (2000) 529 U.S. 244. However, the Supreme Court did not clearly establish in Garner “that an as-applied analysis of the significance of the risk of increased punishment is required with regard to the retroactive application of a change in law like California’s gubernatorial review of parole board decisions.”