EDITH BROWN CLEMENT, Circuit Judge:
The district court denied petitioner-appellant Roger Price's ("Price's") application for a writ of habeas corpus. The district court also issued Price a certificate of appealability ("COA") pursuant to 28 U.S.C. § 2253. Price appeals, arguing that the state court judgment below violated the Ex Post Facto Clause of the U.S. Constitution. See U.S. Const. art. I, § 9, cl. 3 ("No Bill of Attainder or ex post facto Law shall be passed."). For the reasons explained below, we hold that Louisiana Revised Statutes § 15:571.4(B)(2) is void as applied to Price, whose crime occurred before its effective date. Accordingly, we REVERSE the district court's judgment denying habeas relief and REMAND for the district court to order the recalculation of Price's release date.
Price was sentenced for armed robbery by a Louisiana court in 1985. At the time, an offender who violated his conditions of parole could forfeit no more than 180 days of good-time credit earned prior to his parole. See La.Rev.Stat. Ann. § 15:571.4(B)-(C) (1981). In 1997, Louisiana amended Section 15:571.4 so that an inmate who violated his parole conditions would forfeit all good-time credit earned prior to his parole. See 1997 La. Acts 1354 (codified as amended at La.Rev.Stat. § 15:571.4(B)(2)).
A state court commissioner recommended that the state district court deny Price's appeal. Reprinted in Price v. Michaels, No.2009 CA 1401, 2010 WL 502984, at *2 (La.Ct.App. Feb. 12, 2010). Price filed an objection to the commissioner's recommendation, citing Greenfield v. Scafati, 277 F.Supp. 644 (D.Mass.1967) (three-judge panel), aff'd mem., 390 U.S. 713, 88 S.Ct. 1409,
Price filed a petition for writ of habeas corpus in federal district court under 28 U.S.C. § 2254, naming respondent-appellee the Warden of Forcht Wade Correctional Center (the "Warden") as defendant. The district court referred Price's petition to a federal magistrate judge, who reasoned that, because Greenfield was a summary affirmance, it had only "limited precedential value" and could not be treated as clearly established law under 28 U.S.C. § 2254(d)(1). Reprinted in Price v. Warden, Forcht Wade Corr. Ctr., No. 11-cv-0386, 2014 WL 1270020, at *6 (W.D.La. Mar. 27, 2014). The district court adopted the magistrate judge's report and recommendation and denied Price's habeas petition. Id. at *1. It also granted Price's request for a COA. Id. Price appeals to this court pro se.
When "a person in custody pursuant to the judgment of a State court" presents a claim in a federal habeas petition that "was adjudicated on the merits in State court,"
"[A] summary affirmance by the Supreme Court is entitled to precedential weight...." SDJ, Inc. v. City of Houston, 841 F.2d 107, 108 (5th Cir.1988) (per curiam). Just as with the Court's other precedential opinions, lower courts should assume they "are bound by summary decisions... `until such time as the Court informs (them) that (they) are not.'" Hicks v. Miranda, 422 U.S. 332, 344-45, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975) (second and third alterations in original) (quoting Doe v. Hodgson, 478 F.2d 537, 539 (2d Cir. 1973)). Contrary to the magistrate judge's reasoning, then, summary affirmances "without doubt reject the specific challenges presented in the statement of jurisdiction"
A law violates the Ex Post Facto Clause if it is "retrospective," that is, it "appl[ies] to events occurring before its enactment," and it "disadvantage[s] the offender affected by it." Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). The parties do not dispute that Section 571.4(B)(2) disadvantages Price. Accordingly, we need only determine whether the law is retrospective. Price argues that Greenfield controls this question. Considering the issues presented and necessarily decided in Greenfield, and finding that the facts in Greenfield are materially indistinguishable from the facts of this case, we agree with Price.
In Greenfield, a Massachusetts man was sentenced to prison at a time when Massachusetts law did not provide for the forfeiture of good-time credits for parole violations. Greenfield, 277 F.Supp. at 644-45.
The Warden argues that no Supreme Court opinion clearly establishes that applying Louisiana's good-time forfeiture law to Price violated the Ex Post Facto Clause, because the application of the law was "triggered by misconduct committed by the petitioner after the new law [was] enacted." In Greenfield, the Massachusetts prison superintendent ("Superintendent") argued that Massachusetts's law was not retrospective because it was in effect before the prisoner was paroled, and "the relevant act [was] the [prisoner's] violation of the terms of his parole, and not the commission of the original offense." Jurisdictional Statement at *8-9, Scafati v.
In Greenfield, the Superintendent argued that the prisoner "knew that, if he violated parole, he would not receive good-conduct deductions." Jurisdictional Statement, 1968 WL 129215, at *9 (emphasis added). The Warden emphasizes that Price agreed that if he violated his parole conditions, he would forfeit good-time credit. We recognize the factual difference between tacit and express agreement, but "[c]onduct may often convey as clearly as words a promise or an assent to a proposed promise." Restatement (Second) of Contracts § 19 cmt. a (1981). The Warden fails to explain why we should treat the prisoner's knowing acceptance of parole conditions by conduct in Greenfield as materially different from Price's acceptance by contract. We hold that this factual difference does not make Greenfield inapplicable to this case.
Because Greenfield is materially indistinguishable, the rule established in Greenfield controls.
For the reasons explained, we REVERSE the district court's judgment denying habeas relief, and REMAND this case to the district court with instructions to order the State of Louisiana to either recalculate Price's sentence using the law in effect at the time of his offense or release him from custody within 180 days of the date of the district court's order on remand.