Here's something that you definitely don't see every day: A state prisoner winning an Ex Post Facto Clause claim in a post-AEDPA federal habeas case. Just doesn't happen much.
That said, I think that Judge Tashima's opinion is spot on. And relatively brief, to boot. When a statute that says that the penalty for Crime X can be either A or B, at the judge's discretion, is amended to declare that the penalty must now be B (rather than the lesser A), applying the amended statute to Defendant for a crime that transpired prior to the statutory amendment violates the Ex Post Facto Clause. (That sentence, by the way, was even briefer than Judge Tashima's nine-page opinion.) Sounds right to me. Just like when a statute that says that the penalty for Crime X must be A is amended to say that the penalty must now be B (= A + 5 years). The state can't sentence Defendant to B if the crime was committed before the statutory amendment. Same result.
What's perhaps most troubling about this opinion is not the result it reaches -- which seems entirely right -- but rather the treatment of this claim prior to it getting before the Ninth Circuit. Williams made this same argument in the California state system on habeas, only to get it repeatedly and uniformly slapped down, in the superior court, the Court of Appeal, and in the California Supreme Court. And, on federal habeas, he got the same treatment in the district court as well (before Judge Real): Denied.
This doesn't exactly say very nice things about the "careful" treatment of habeas petitions, particularly in the state system. Rather, the sense you get is that it's often just a rush to see how quickly the state court (or, in at least some cases, the federal district court) can get these "frivolous" petitions denied. And one might perhaps be inclined to think that the stark contrast between the result in the state habeas system (routine denial, often without any substantive comment whatsoever) and the result here is only because the stinking "liberal" Ninth Circuit went out of its way to grant relief. But such an explanation (1) is not particularly plausible on the merits, since I think the panel -- which admittedly is pretty leftie (Pregerson, Tashima, and Paez) -- reaches the right result, even after applying the super-strict substantive standards applicable to post-AEDPA federal habeas petitions (which did not apply in the state habeas proceedings, which should have made the state court much more willing to grant relief than the Ninth Circuit), and (2) doesn't take into account that, as footnote 1 of Judge Tashima's opinion references, the State basically admitted that there was an ex post facto violation here. Why exactly does it take four rounds of state and district court habeas proceedings in order to finally find a violation that the state essentially concedes? Why are these judges seemingly blind to a violation that (1) even the state itself can't plausibly defend, and (2) is an "obvious" violation of "controlling precedent" of the "United States Supreme Court" under AEDPA?
The correct answer to these questions probably speaks volumes about how habeas petitions are routinely treated in lower courts. Sure, there are a ton of them, and they're often a pain in the butt (if for no other reason than the fact that we don't provide counsel in habeas proceedings means that these petitions are typically filed pro se).
Still, they're important. People's fundamental person liberty is at stake. You've got to take them seriously. And get 'em right. Particularly in fairly obvious cases such as these.
There's no excuse for this one to have taken as long as it has to reach the right result.
