-JFM (HC) Bair v. Warden, Deuel Vocational Institution et al, No. 2:2009cv01730 - Document 24 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 11/7/11 RECOMMENDING that this action be stayed pending final resolution of the Ex Post Facto Clause claim in Gilman v. Brown, No. 05-cv-0830 LKK GGH (HC); Respondents be requi red to move to lift the stay in this matter within ten days from the date of entry of judgment in the district court in the Gilman action; and Clerk of the Court be directed to administratively close this case. Referred to Judge Lawrence K. Karlton; Objections to F&R due within 14 days. (Dillon, M)

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-JFM (HC) Bair v. Warden, Deuel Vocational Institution et al Doc. 24 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 CLIFFORD BAIR, 11 12 13 Petitioner, No. 2:09-cv-1730-LKK-JFM (HC) vs. WARDEN, DEUEL VOCATIONAL INSTITUTION, et al., FINDINGS AND RECOMMENDATIONS 14 Respondents. 15 16 / Petitioner is a state prisoner proceeding pro se with an application for a writ of 17 habeas corpus pursuant to 28 U.S.C. § 2254. By this action, petitioner seeks an order prohibiting 18 respondents from enforcing, implementing, or applying the provisions of Proposition 9, Marsy’s 19 Law, which allow increased participation from victims’ rights groups and which require a 20 minimum period of three years between parole suitability hearings following a denial of parole, 21 at any parole suitability hearing set for petitioner. Petitioner claims that application of 22 Proposition 9 to him would violate the provisions of the Ex Post Facto Clause of the United 23 States Constitution. 24 As this court has previously noted, there is another action pending in this court 25 presenting a challenge to Proposition 9 based on, inter alia, the Ex Post Facto Clause and seeking 26 injunctive relief barring application of its provisions. See Gilman v. Brown, No. 2:05-cv-0830 1 Dockets.Justia.com 1 LKK GGH (PC). In relevant part, the class certified in Gilman “is defined as ‘all California state 2 prisoners who have been sentenced to a life term with possibility of parole for an offense that 3 occurred before November 4, 2008.’” Gilman, Order filed April 25, 2011, at 2. Plaintiff is a 4 member of the Gilman class. See Petition filed June 23, 2009. 5 In another action in this court, the district judge assigned to this action and to the 6 Gilman action stayed proceedings on an Ex Post Facto Clause challenge to Proposition 9 pending 7 final resolution of Gilman. See Lopez v. Salinas, No. 2:10-cv-3168 LKK KJN (HC).1 8 9 In view of that order, and good cause appearing, IT IS HEREBY RECOMMENDED that: 10 11 1. This action be stayed pending final resolution of the Ex Post Facto Clause claim in Gilman v. Brown, No. 05-cv-0830 LKK GGH (HC); 12 13 2. Respondents be required to move to lift the stay in this matter within ten days from the date of entry of judgment in the district court in the Gilman action; and 14 3. The Clerk of the Court be directed to administratively close this case. 15 These findings and recommendations are submitted to the United States District 16 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 17 days after being served with these findings and recommendations, any party may file written 18 objections with the court and serve a copy on all parties. Such a document should be captioned 19 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 20 objections shall be filed and served within fourteen days after service of the objections. The 21 ///// 22 ///// 23 ///// 24 ///// 25 1 26 A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 2 1 parties are advised that failure to file objections within the specified time may waive the right to 2 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: November 7, 2011. 4 5 6 7 8 12 bair1730.stay 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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