Biggs v. Secretary of the California Department of Corrections & Rehabilitation

After Jeffrey J. Biggs was convicted of murder and sentenced to twenty-five years to life in prison with the possibility of parole, California amended its constitution to give the Governor authority to review parole-board decisions for prisoners convicted of murder. Cal. Const, art. V, § 8(b). The parole board subsequently found Biggs suitable for parole, but then-Governor Arnold Schwarzenegger reversed the parole board’s decision. Biggs claims that retroactive application of the interim change to the California Constitution violates the Ex Post Facto Clause of the U.S. Constitution. U.S. Const, art. I, § 10, cl. 1.

We previously analyzed the constitutionality of the retroactive application of this same provision of the California Constitution in Johnson v. Gomez, where we up held article V, § 8(b) against an Ex Post Facto Clause challenge. 92 F.3d 964, 965-68 (9th Cir.1996). After the Supreme Court’s most recent decision in the area, Garner v. Jones, 529 U.S. 244 , 120 S.Ct. 1362 , 146 L.Ed.2d 236 (2000), the California Supreme Court also upheld article V, § 8(b) against an Ex Post Facto Clause challenge. In re Rosenkrantz, 29 Cal.4th 616 , 128 Cal.Rptr.2d 104 , 59 P.3d…