JEFFREY BIGGS V. SECRETARY OF CALIFORNIA, No. 11-18021 (9th Cir. 2013)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on May 29, 2013.
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FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JEFFREY J. BIGGS, Petitioner-Appellant, No. 11-18021 v. D.C. No. 2:07-cv-00470-WBS-CKD SECRETARY OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, Respondent-Appellee. ORDER AMENDING OPINION AND DENYING PETITION FOR PANEL REHEARING AND PETITION FOR REHEARING EN BANC Filed September 4, 2013 Before: J. Clifford Wallace, Jerome Farris, and Jay S. Bybee, Circuit Judges. ORDER The opinion, filed May 29, 2013, appearing at 717 F.3d 678 (9th Cir. 2013), is amended as follows: 1. At 717 F.3d at 689, lines 47 50, replace, To the extent the Garner opinion includes language that can be interpreted as being relevant to the scope of applicability of 2 BIGGS V. SEC Y OF CAL. DEP T OF CORR. & REHAB. the as-applied requirement, that language suggests a limited scope. with, Garner s language regarding the as-applied requirement is limited in scope. 2. At 717 F.3d at 691, lines 61 62, replace we only considered that test facially. with, we did not have to reach the as-applied challenge because we found the law facially invalid. 3. At 717 F.3d at 692, lines 3 5, replace if such a holding existed, could be and should be distinguished with regard to the change in law at issue here. with, can and should be distinguished with regard to the change in law at issue here. 4. At 717 F.3d at 692, lines 8 9, replace in Biggs case or otherwise. with, in Biggs case. 5. 717 F.3d at 692, lines 61 64, replace Thus, because none of our cases discussing Garner hold that as-applied analysis is required by clearly established federal law, we have no reason not to follow Johnson. with, Thus, because none of our cases discussing Garner holds that clearly established federal law requires as-applied analysis, we have no reason not to follow Johnson. With these amendments, the panel judges have voted to deny appellant s petition for panel rehearing. Judge Bybee voted to deny the petition for rehearing en banc, and Judges Wallace and Farris recommended denying the petition for rehearing en banc. BIGGS V. SEC Y OF CAL. DEP T OF CORR. & REHAB. 3 The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. Appellant s petition for rehearing and petition for rehearing en banc, filed July 12, 2013, is DENIED. The panel will not entertain future petitions for rehearing.
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