Jefferson Douglas Walker, Plaintiff-appellant, v. State of California; Dan Lungren, Attorney General,defendants-appellees, 141 F.3d 1182 (9th Cir. 1998)

MEMORANDUM^* 

California state prisoner Jefferson Douglas Walker appeals pro se the district court's dismissal without prejudice of his 42 U.S.C. § 1983 action for lack of standing. Walker alleged, among other things, that Cal. Evid.Code § 1107 (West 1995) was unconstitutional because the statute barred him from introducing evidence at his criminal trial that he was a victim of domestic violence. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, see Takhar v. Kessler, 76 F.3d 995, 999 (9th Cir. 1996), and may affirm on any basis fairly supported by the record, see Trimble v. City of Santa Rosa, 49 F.3d 583, 584 (9th Cir. 1995) (per curiam).

We affirm the district court's dismissal of Walker's challenge to Cal. Evid.Code § 1107, because a successful challenge would necessarily imply the invalidity of Walker's sentence and continuing confinement. See Butterfield v. Bail, 120 F.3d 1023, 1024-25 (9th Cir. 1997); cf. Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir. 1997) (concluding that Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), did not bar plaintiffs' due process challenge to their sex offender labels because a victory would not alter the determination of plaintiffs' parole requests).

We also affirm the district court's dismissal of Walker's challenge to Cal.Penal Code § 4801 (West 1982 & Supp.1992), because Walker concedes that the Governor of California has yet to deny his request for commutation. Accordingly, the claim is not ripe for adjudication. See 18 Unnamed John Smith Prisoners v. Meese, 871 F.2d 881, 882-83 (9th Cir. 1989).

AFFIRMED.¹