436
Opinion of the Court
"provisional credits" awarded as a result of prison overcrowding. Shortly after petitioner's release, the state attorney general issued an opinion interpreting a 1992 statute as having retroactively canceled all provisional credits awarded to inmates convicted of murder or attempted murder. Petitioner was therefore rearrested and returned to custody. His new release date was set for May 19, 1998.
In 1994 petitioner filed a petition for a writ of habeas corpus alleging that the retroactive cancellation of provisional credits violated the Ex Post Facto Clause. Relying on Eleventh Circuit 2 and Florida 3 precedent holding that the revocation of provisional credits did not violate the Ex Post Facto Clause because their sole purpose was to alleviate prison overcrowding, the Magistrate Judge recommended dismissal of the petition. The District Court adopted that recommendation, dismissed the petition, and denied a certificate of probable cause. The Court of Appeals for the Eleventh Circuit also denied a certificate of probable cause in an unpublished order. Because the Court of Appeals for the Tenth Circuit reached a different conclusion on similar facts, Arnold v. Cody, 951 F. 2d 280 (1991), we granted certiorari to resolve the conflict. 517 U. S. 1186 (1996).4
gain-time" of 958 days; (4) "administrative gain-time" of 335 days; and (5) "provisional credits" of 1,860 days. Disciplinary action resulted in a forfeiture of 295 days.
2 Hock v. Singletary, 41 F. 3d 1470 (1995).
3 Dugger v. Rodrick, 584 So. 2d 2 (Fla. 1991), cert. denied sub nom. Rodrick v. Singletary, 502 U. S. 1037 (1992).
4 Petitioner did not advance his ex post facto claim in state court. In the District Court respondents challenged his failure to exhaust his state remedies, but do not appear to have raised the exhaustion issue in the Court of Appeals; nor have they raised it in this Court. Presumably they are satisfied, as we are, that exhaustion would have been futile. The Florida Supreme Court, in Dugger v. Rodrick, 584 So. 2d 2 (1991), held that retrospective application of the provisional credits statute's offense-based exclusion did not violate the Ex Post Facto Clause. The court reasoned that overcrowding credits, unlike basic gain-time or incentive gain-time, were merely "procedural" and did not create any substantive
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