SCOTT KERNAN, SECRETARY, CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION
ANTONIO A. HINOJOSA
PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor, Kagan.
L.Ed.2d 702] PER CURIAM.
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
requires a state prisoner seeking federal habeas relief first
to " exhaus[t] the remedies available in the courts of
the State." 28 U.S.C. § 2254(b)(1)(A). If the state
courts adjudicate the prisoner's federal claim " on
the merits," § 2254(d), then AEDPA mandates
deferential, rather than de novo, review,
prohibiting federal courts from granting habeas relief unless
the state-court decision " was contrary to, or involved
an unreasonable application of, clearly established Federal
law," § 2254(d)(1), or " was based on an [194
L.Ed.2d 703] unreasonable determination of the facts,"
§ 2254(d)(2). The Ninth Circuit in this case decided
that the Supreme Court of California's summary denial of
a habeas petition was not " on the
merits," and therefore AEDPA's deferential-review
provisions did not apply. We summarily reverse.
Antonio Hinojosa was serving a 16-year sentence for armed
robbery and related crimes when, in 2009, California prison
officials " validated" him as a prison-gang
associate and placed him in a secured housing unit. At the
time of Hinojosa's offense and conviction, California law
had permitted prisoners placed in a secured housing unit
solely by virtue of their prison-gang affiliations to
continue to accrue good-time credits. See Cal. Penal Code
Ann. § 2933.6 (West 2000). In 2010, the California
Legislature amended the law so that prison-gang associates
placed in a secured housing unit could no longer earn future
good-time credits, although they would retain any credits
already earned. § 2933.6(a) (West Supp. 2016).
filed a state habeas petition, arguing (as relevant here)
that applying the new law to him violated the Federal
Constitution's prohibition of ex post facto
laws. See Art. I, § 10, cl. 1; Weaver v.
Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17
(1981). The Orange County Superior Court denied the claim
" on grounds petitioner has not sought review of his
claim of error in the proper judicial venue." App. to
Pet. for Cert. 44a. The court explained:
" 'Although any superior court has jurisdiction to
entertain and adjudicate a petition for writ of habeas
corpus, it does not follow that it should do so in all
instances.' Challenges to conditions of an inmate's
confinement should be entertained by the superior court of
county wherein the inmate is confined. ( Griggs v.
Superior Court (1976) 16 Cal.3d 341, 347, 128 Cal.Rptr.
223, 546 P.2d 727.)
" The petition for writ of habeas corpus is
DENIED." Id., at 44a-45a. 
than file a new petition in the correct venue (Kings County
Superior Court), Hinojosa turned to the appellate court,
which summarily denied his petition. Instead of appealing
that denial, see Cal. Penal Code Ann. § 1506 (West Supp.
2016), Hinojosa sought an original writ of habeas corpus in
the Supreme Court of California, see Cal. Const., Art. 6,
§ 10, which summarily denied relief without explanation.
petition for federal habeas relief followed. Adopting the
Magistrate Judge's findings and recommendation, the
District Court denied Hinojosa's ex post facto
claim under AEDPA's deferential review. A Ninth Circuit
panel reversed. Hinojosa v. Davey, 803 F.3d
412 (2015). Citing our decision in Ylst v.
Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590, 115
L.Ed.2d 706 (1991), [194 L.Ed.2d 704] the panel " looked
through" the Supreme Court of California's summary
denial to the last reasoned decision adjudicating
Hinojosa's claim: the Superior Court's dismissal for
improper venue. The panel reasoned that the Superior
Court's decision " is not a determination 'on
the merits'" and that as a result it was " not
bound by AEDPA." 803 F.3d, at 419. Having thus freed
itself from AEDPA's strictures, the court granted
Hinojosa's petition for habeas relief.
reverse. In Ylst, we said that where " the last
reasoned opinion on the claim explicitly imposes a procedural
default, we will presume that a later decision rejecting the
claim did not silently disregard that bar and consider the
merits." 501 U.S. at 803, 111 S.Ct. 2590, 115 L.Ed.2d
706. We adopted this presumption because " silence
implies consent, not the opposite--and courts generally
behave accordingly, affirming without further discussion when
they agree, not when they disagree, with the reasons given
below." Id., at 804, 111 S.Ct. 2590, 115
L.Ed.2d 706. But we pointedly refused to make the presumption
irrebuttable; " strong evidence can refute it."
amply refuted here. Improper venue could not possibly have
been a ground for the high court's summary denial of
Hinojosa's claim. There is only one Supreme Court of
California--and thus only one venue in which Hinojosa could
have sought an original writ of habeas corpus in that court.
Under these circumstances, it cannot be that the State
Supreme Court's denial " rest[ed] upon the same
ground" as the Superior Court's. Id., at
803, 111 S.Ct. 2590, 115 L.Ed.2d 706. It quite obviously
rested upon some different ground. Ylst 's
" look-through" approach is therefore inapplicable.
resists this conclusion, remarking that " a reviewing
court has discretion to deny without prejudice a
habeas corpus petition that was not filed first in a proper
lower court." In re Steele, 32 Cal.4th 682,
692, 10 Cal.Rptr.3d 536, 85 P.3d 444, 449 (2004) (emphasis
added). But there is no indication that the summary denial
here was without prejudice, thus refuting Hinojosa's
no statement to the contrary, the Supreme Court of
California's summary denial of Hinojosa's petition
was therefore on the merits. Harrington v.
Richter, 562 U.S. 86, 99, 131 S.Ct. 770, 178 L.Ed.2d
624 (2011). Accordingly, the Ninth Circuit should have
reviewed Hinojosa's ex post facto claim through
AEDPA's deferential lens. And although we express no view
on the merits of that claim, we note that the Ninth Circuit
has already held that state-court denials of claims identical
to Hinojosa's are not contrary to clearly established
federal law. See Nevarez v. Barnes, 749
F.3d 1124 (CA9 2014); see also In re Efstathiou, 200
Cal.App.4th 725, 730-732, 133 Cal.Rptr.3d 34, 37-40 (2011);
In re Sampson, 197 Cal.App.4th 1234, 1240-1244, 130
Cal.Rptr.3d 39, 43-46 (2011). The panel below recognized ...