Colt v. Swarthout
Filing
11
ORDER signed by Magistrate Judge Edmund F. Brennan on 11/30/11 GRANTING 9 Motion for Extension of time; Objections to F&R due within 30 days; DENYING 10 Motion to Stay. (Dillon, M)
<![CDATA[
1
2
3
4
5
6
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
THOMAS COLT,
Petitioner,
11
12
13
No. CIV S-11-1742 EFB P
vs.
GARY SWARTHOUT,
ORDER
Respondent.
14
/
15
16
Petitioner is a state prisoner proceeding without counsel seeking a writ of habeas corpus.
17
See 28 U.S.C. § 2254. Petitioner challenges the decision of the California Board of Parole
18
Hearings to deny him parole at a 2009 parole consideration hearing. Pet. at 6.1 He claims that
19
the Board’s decision was unconstitutional because it denied parole for seven years pursuant to
20
Marsy’s Law, in violation of the Ex Post Facto Clause. Id. at 11. On October 3, 2011, the court
21
recommended petitioner’s writ of habeas corpus be dismissed because petitioner is already a
22
member of a class action – Gilman v. Fisher, No. Civ. S-05-0830 LKK GGH – which addresses
23
the same issues. Dckt. No. 7 at 2, 5. Currently before the court is petitioner’s motion to stay.
24
Dckt. No. 10. For the reasons explained below, petitioner’s request is denied.
25
1
26
For ease of reference, all references to page numbers in the petition are to those
assigned via the court’s electronic filing system.
1
1
Petitioner requests to stay the proceedings pending the outcome of two cases before the
2
California Supreme Court: In re Vicks, 195 Cal.App.4th 475, 125 Cal.Rptr. 3d 627 (2011), reh’g
3
denied (June 3, 2011), review granted and opinion superseded, 255 P.3d 952 (Cal. 2011), and In
4
re Reed, D058592, 2011 WL 3035393 (Cal.Ct.App. July 25, 2011), review granted (Oct. 12,
5
2011). Id. at 1. Petitioner contends the California Court of Appeal found in both cases that
6
Marsy’s law violated the Ex Post Facto Clause. Id. But this court has already held that
7
petitioner’s rights will be “fully protected by his participation as a class member” in Gilman.
8
Dckt. No. 7 at 4. Thus, any influence that these two California Supreme Court cases may have
9
on petitioner’s claim is properly addressed in the Gilman action.
10
11
In the alternative, petitioner requests an extension of time to file objections to this court’s
October 4 findings and recommendations.
12
Accordingly, IT IS HEREBY ORDERED:
13
1. Petitioner’s motion to stay is denied; and
14
2. Petitioner’s motion for extension of time to file objections is granted. Petitioner may
15
file his objections within 30 days of the date of this order.
16
Dated: November 30, 2011.
17
18
19
20
21
22
23
24
25
26
2
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
