(HC) Bagdasaryan v. Swarthout et al, No. 2:2011cv03314 - Document 17 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 12/11/12 recommending that defendant's 03/06/12 motion to dismiss the pending federal habeas petition as untimely 13 be denied. Defendant's 03/06/12 motion to dismi ss petitioner's due process claim for failure to state a cognizable claim for federal habeas relief 13 be granted. Defendant's 03/06/12 motion to dismiss petitioner's Ex Post Facto Clause claim 13 be granted and that claim be dism issed without prejudice to any relief that may be available to petitioner as a member of the class in Gilman v. Fisher, No. 2:05-cv-0830 LKK GGH P; and this action be closed. MOTION to DISMISS 13 referred to Judge John A. Mendez. Objections due within 21 days. (Plummer, M)
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(HC) Bagdasaryan v. Swarthout et al Doc. 17 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 AKOP BAGDASARYAN, Petitioner, 11 vs. 12 13 No. 2:11-cv-03314-JAM-DAD P GARY SWARTHOUT, et al., FINDINGS AND RECOMMENDATIONS Respondents. 14 / 15 16 Petitioner, a state prisoner incarcerated at the California State Prison - Solano, is 17 proceeding pro se with a petition for a writ of habeas corpus. Petitioner challenges the decision 18 of the California Board of Parole Hearings (hereinafter “Board”) to deny him parole following 19 his January 7, 2010 parole suitability hearing. Before the court is respondent Swarthout’s motion 20 to dismiss the petition as untimely and for failure to state a cognizable claim for federal habeas 21 relief. Petitioner has filed an opposition to the motion, respondent has filed a reply and petitioner 22 has filed an unauthorized sur-reply.1 23 ///// 24 ///// 25 1 26 In light of petitioner’s pro se status the court has considered petitioner’s unauthorized response to respondent’s reply. 1 Dockets.Justia.com 1 2 MOTION TO DISMISS THE PETITION AS UNTIMELY I. Statute of Limitations Under the AEDPA 3 Because this action was filed after April 26, 1996, the provisions of the 4 Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) are applicable. See Lindh v. 5 Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). The 6 AEDPA imposed a one-year statute of limitations on the filing of federal habeas petitions. Title 7 28 U.S.C. § 2244 provides as follows: 8 (d) (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of – 9 10 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 11 12 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 13 14 15 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 16 17 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 18 19 (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 20 21 22 II. Background On January 7, 2010, petitioner received a parole suitability hearing.2 At that time 23 24 the Board determined that petitioner was not suitable for parole and that decision became final on 25 2 26 According to the record, that hearing was the “Subsequent Number Three Parole Consideration Hearing for Akop Bagdasaryan.” (Doc. No. 13-7 at 55.) 2 1 May 7, 2010. (Doc. No. 13-1 at 42.) 2 On April 27, 2010, petitioner signed his habeas petition filed with the Los 3 Angeles County Superior Court in which he challenged the Board’s 2010 decision.3 (Id. at 10.) 4 On July 1, 2010, that petition was denied. (Doc. No. 13-6 at 2.) On August 25, 2919, petitioner 5 signed a proof of service for his “Motion For Rehearing” filed with the California Court of 6 Appeal for the Second Appellate District. (Doc. No. 13-7 at 2 & 18.) On September 22, 2010, 7 the motion, construed by the court as a petition for writ of habeas corpus, was denied by the state 8 appellate court. (Doc. No. 13-9 at 2.) On September 30, 2010, petitioner filed a petition for 9 review with the California Supreme Court. (Doc. No. 13-10 at 2 & 17-18.) On November 23, 10 2010, that petition was summarily denied. (Doc. No. 13-12 at 2.) 11 The petition for a writ of habeas corpus pending before this court was signed by 12 petitioner on November 20, 2011, and filed with the U.S. District Court for the Central District 13 of California. On December 14, 2011, this action was transferred to and filed in this court. 14 III. Parties’ Arguments 15 A. Respondent’s Motion to Dismiss 16 Respondent argues that the statute of limitations for petitioner to seek federal 17 habeas relief began to run on January 8, 2010, one day after the parole consideration hearing he 18 challenges. (Doc. No. 13 at 4.) Respondent contends that on the date of the parole hearing, 19 petitioner became aware of the factual predicate of his claims because that is the date when the 20 Board announced its decision to deny him parole. (Doc. No. 13 at 3.) According to respondent, 21 the statute of limitations for the filing of a federal habeas petition continued to run for 109 days 22 until it was tolled by petitioner’s filing of a habeas petition with the Los Angeles Superior Court 23 3 24 25 26 The court applies the mailbox rule in determining the date of filing of petitioner’s state and federal habeas petitions. See Houston v. Lack, 487 U.S. 266, 276 (1988); Campbell v. Henry, 614 F.3d 1056, 1058-59 (9th Cir. 2010) (applying the mailbox rule to both state and federal filings by incarcerated inmates). Under the mailbox rule, the court deems petitions filed on the date the petitioner presumably handed his petition to prison authorities for mailing or the date the petition in question was signed by the petitioner. 3 1 on April 28, 2010. (Id. at 4.) Tolling of the statute of limitations continued until the California 2 Supreme Court ultimately denied his petition for review on November 23, 2010. (Id.) 3 Respondent contends that petitioner’s federal habeas petition was not filed until 378 days later on 4 November 23, 2011, when it was transferred to the U.S. District Court for the Eastern District of 5 California. (Id.) Based upon this calculation (109 + 378 = 487 days - 365 days = 122 days), 6 respondent contends that petitioner’s federal habeas petition was filed 122 days after the 7 applicable one-year statute of limitations had expired. (Id.) 8 9 B. Petitioner’s Opposition Petitioner asserts that the statute of limitations for his seeking of federal habeas 10 relief in this matter began to run on November 23, 2010, when the California Supreme Court 11 denied his petition for review. (Doc. No. 14 at 2.) Petitioner also contends that his federal 12 habeas petition was filed when he delivered it to prison authorities for mailing and not on the 13 date that it was transferred to this court by the U.S. District Court for the Central District of 14 California. (Id. at 3.) Petitioner refers to the transfer order which he notes advises only that the 15 district of confinement is the preferred forum for the petition and does not state that his federal 16 habeas petition was improperly filed in the Central District. (Id.) 17 18 C. Respondent’s Reply (Doc. No. 15) Respondent again argues that the one-year limitations period during which 19 petitioner could seek federal habeas relief began to run from the date the factual predicate for his 20 claims could have been discovered through the exercise of due diligence and that petitioner in 21 fact became aware of the factual predicate for his claims on January 7, 2010, the day of his parole 22 consideration hearing. (Doc. No. 15 at 2.) Thus, according to respondent, the statute of 23 limitations began to run on January 8, 2010. (Id.) Respondent also repeats his contention that 24 the filing of the federal petition in the U.S. District Court for the Central District of California on 25 November 23, 2011, did not toll the statute of limitations because the petition was not properly 26 filed at that time. (Id.) Respondent asserts that the federal statute of limitations was running 4 1 2 until December 6, 2011, when the federal petition was transferred to this court. (Id.) D. Petitioner’s Sur-Reply 3 In his unauthorized sur-reply petitioner contends that an evidentiary hearing is 4 needed to resolve the issues of statutory tolling and whether his federal habeas petition was 5 properly filed. (Doc. No. 16 at 2.) Petitioner argues that the applicable statute of limitations did 6 not begin to run “until Petitioner’s State habeas filing became final on February 23, 2011,” ninety 7 days after the California Supreme Court denied his petition for review. (Id. at 5.) 8 IV. Analysis 9 10 A. Application of § 2244(d)(1)(D) The statute of limitations for the seeking of federal habeas relief based upon a 11 challenge to a parole suitability hearing is based on § 2244(d)(1)(D), the date on which the 12 factual predicate of the claim or claims could have been discovered through the exercise of due 13 diligence. Mardesich v. Cate, 668 F.3d 1164, 1171-72 (9th Cir. 2012) (citing Redd v. McGarth, 14 343 F.3d 1077 (9th Cir. 2003)). “As a general rule, the state agency’s denial of an administrative 15 appeal is the ‘factual predicate’ for such habeas claims.” 668 F.3d at 1172. In the context at 16 issue here, “[c]ourts ordinarily deem the factual predicate to have been discovered the day the 17 decision becomes final, i.e., 120 days after the Board finds a petitioner not suitable for parole.” 18 Wilson v. Sisto, No. 2:07-cv-00733-MCE-EFB P, 2008 WL 4218487, at *2 (E.D. Cal. Sept. 5, 19 2008) (citing Nelson v. Clark, No. 1:08-cv-00114-OWW-SMS HC, 2008 WL 2509509, at *4 20 (E.D. Cal. June 23, 2009)). See also Gonzales v. Swarthout, No. 2:11-cv-01446-GEB-EFB P, 21 2012 WL 2577545, *1 (E.D. Cal. July 3, 2012) (same); King v. Biter, No. 1:12-cv-00083-LJO- 22 MJS HC, 2012 WL 2559263, at *3 (E.D. Cal. June 29, 2012) (noting that the Ninth Circuit “has 23 not decided whether the triggering event is the initial decision denying parole or the point at 24 which the decision becomes final” and that “the initial, proposed decision cannot logically 25 constitute all the facts constituting reasonable grounds for asserting a claim challenging a parole 26 decision, as the parole decision has yet to be made.”). 5 1 In reliance on these authorities, the undersigned finds that the factual predicate of 2 his claims became known to petitioner when the parole decision in question became final, which 3 in this case was on May 7, 2010. Thus, the statute of limitations for the filing of a federal habeas 4 petition by petitioner began to run on May 8, 2010. See Patterson v. Stewart, 251 F.3d 1243, 5 1246 (9th Cir. 2001) (concluding that the AEDPA statute of limitations begins to run the day 6 after the act or event which triggers the running of the statute of limitations). 7 B. Application of § 2244(d)(2) 8 9 “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be 10 counted” toward the AEDPA statute of limitations. 28 U.S.C. § 2244(d)(2). The statute of 11 limitations is not tolled during the interval between the date on which a judgment becomes final 12 and the date on which the petitioner files his first state collateral challenge because there is no 13 case “pending.” Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). Once a petitioner 14 commences state collateral proceedings, a state habeas petition is “pending” during one full 15 round of review in the state courts, including the time between a lower court decision and the 16 filing of a new petition in a higher court, as long as the intervals between the filing of those 17 petitions are “reasonable.” Carey v. Saffold, 536 U.S. 214, 222-24 (2002). As noted above, the statute of limitations for the filing of petitioner’s federal 18 19 habeas petition in this case began to run on May 8, 2010. It is undisputed by respondent that 20 petitioner is entitled to statutory tolling of the limitations period from the date his habeas petition 21 was filed with the Los Angeles County Superior Court until his petition for review was denied by 22 the California Supreme Court. The intervals between petitioner’s filing of his state habeas 23 petitions at each level of review were reasonable. The court therefore finds that statutory tolling 24 ///// 25 ///// 26 ///// 6 1 applies during that entire period of time that he was pursuing relief in state court.4 Petitioner 2 was entitled to statutory tolling of the federal limitations period from May 8, 2010 through 3 November 23, 2010, when the California Supreme Court denied his petition for review. The 4 one-year statute of limitations for the filing of a federal habeas petition in this case therefore 5 began to run on November 24, 2010. 6 C. Filing Date for Federal Petition 7 As noted above, petitioner’s federal habeas petition was signed by him on 8 November 20, 2011, and was filed with the U.S. District Court for the Central District of 9 California on December 6, 2011. The case was then transferred on December 14, 2011, from the 10 judicial district from where petitioner was convicted (Central District) to the Eastern District of 11 California where petitioner was confined at the time of the parole hearing he seeks to challenge. 12 Respondent argues that the statute of limitations for the filing of the federal habeas petition 13 continued to run until the petition was transferred to this court because it was not properly filed 14 by petitioner in the U.S. District Court for the Central District of California. Respondent’s 15 argument in this regard is unpersuasive. 16 First, the general rule with regard to habeas applications is that both the United 17 States District Court in the district where petitioner was convicted and the District Court where 18 petitioner is incarcerated have jurisdiction over the claims. See Braden v. 30th Judicial Circuit 19 Court, 410 U.S. 484 (1973). Petitioner was convicted in the Los Angeles County Superior Court 20 which is located within the boundaries of the Central District of California. Accordingly, his 21 federal habeas petition was obviously properly filed in the Central District. Petitioner is correct 22 that the transfer of his habeas action by that court to this court did not call into question the 23 4 24 25 26 Although petitioner filed his first state habeas petition with the Los Angeles County Superior Court before the statute of limitations for the filing of a federal petition even began to run, that state habeas petition was denied on the merits, was properly filed and therefore served to toll the federal statute of limitations. See Waldrip v. Hall, 548 F.3d 729, 735 (9th Cir. 2008) (a state habeas petition filed before the effective date of petitioner’s conviction nonetheless served to toll the federal limitations period). 7 1 appropriateness of his filing in that district.5 Moreover, even if the Central District was an 2 improper venue for this action, the filing date of the petition following the transfer would still be 3 deemed the date petitioner signed his petition and submitted it for filing in the Central District. 4 See Phillips v. Seiter, 173 F.3d 609, 610 (7th Cir. 1999) (“A compelling reason for transfer is 5 that the plaintiff, whose case is transferred is for statute of limitations purposes deemed by 6 section 1631 to have been filed in the transferor court . . . will be time-barred if his case is 7 dismissed and thus has to be filed anew in the right court.”); Cross v. Corona, No. CIV S-09- 8 0488 LKK KJM P, 2010 WL 716318, at *3 n.3 (E.D. Cal. March 2, 2010) (citing Rule 22(a) of 9 the Federal Rules of Appellate Procedure and holding that even where a case is filed in a court 10 without jurisdiction and the court transfers the action, it “shall proceed as if it had been filed in . . 11 . the court to which it is transferred on the date upon which it was actually filed in . . . the court 12 from which it is transferred.”). 13 Although the statute of limitations for petitioner’s filing of a federal habeas 14 petition would have commenced running on May 8, 2010, on that same date the statute of 15 limitations was tolled since he was already pursuing his round of state collateral review. In effect 16 then, the statute of limitations for the seeking of federal habeas relief did not commence until 17 November 24, 2010, the day after the California Supreme Court denied petitioner’s petition for 18 review. Petitioner therefore had until November 23, 2011 to file his federal habeas petition. 19 That petition was filed on November 20, 2011, the date the federal habeas petition was signed by 20 petitioner. Therefore, the federal habeas petition pending before this court was timely filed three 21 5 22 23 24 25 26 Respondent cites the decision in Hood v. Galaza, 47 F. Supp. 2d 1144, 1147 (S.D. Cal. 1999) in support of his contention that petitioner’s filing of his habeas petition in the U.S. District Court for the Central District of California was improper and of no consequence. In Hood, the petitioner had been convicted within the boundaries of the Southern District of California. 47 F. Supp. 2d at 1145. The district court in that case found, without citation to authority, that his federal habeas petition attacking that conviction should have been filed in the Southern District and that his filing of the petition initially in the Eastern District did not toll the statute of limitations. Id. at 1147. The court in Hood did not identify where the petitioner was incarcerated at the time of his initial federal habeas filing. In any event, here petitioner filed his petition in the district of conviction, as the court in Hood found was appropriate. 8 1 days before the one-year statute of limitations expired and respondent’s motion to dismiss that 2 petition as untimely should be denied. 3 MOTION TO DISMISS FOR FAILURE TO STATE COGNIZABLE CLAIM FOR FEDERAL HABEAS RELIEF 6 4 5 I. Background 6 In his pending federal habeas petition, petitioner raises two grounds for relief. 7 First, he claims that the Board’s 2010 decision to deny him parole violated his due process rights 8 because that decision was based on “unchanging crime factors[.]” (Doc. No. 1 at 6.) Petitioner 9 contends that the Board did not rely on evidence showing that he was likely to resume criminal 10 activity if released, and instead relied on the gravity of his offense of conviction and his criminal 11 conduct before and after imprisonment. (Id.) Petitioner argues that such evidence does not 12 “qualify as ‘some evidence’ as it relates to current dangerousness.” (Id.) Second, petitioner claims that the Board’s decision to delay his next parole 13 14 consideration for ten years pursuant to California Penal Code § 3041.5(b)(3) (Marsy’s Law) is 15 unlawful. (Id. at 7.) Petitioner contends that because he was sentenced in 1993 and Marsy’s Law 16 was enacted in 2008, the longer deferral periods between parole hearings authorized by Marsy’s 17 Law violates the ex post facto clause. (Id.) 18 II. Due Process Claim 19 A. The Parties’ Arguments 20 Respondent argues that petitioner’s due process claim is not cognizable in light of 21 the decision in Swarthout v. Cooke, 562 U.S. ___ , ___, 131 S. Ct. 859, 861 (2011) in which the 22 Supreme Court held that due process requires only that California inmates be given an 23 6 24 25 26 Under Rule 4 of the Rules Governing Section 2254 Cases, “If it plainly appears from the face of the petition . . . that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal . . . .” Rule 4, Rules Governing § 2254 Cases. Rule 4 “‘explicitly allows a district court to dismiss summarily the petition on the merits when no claim for relief is stated.’” O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (quoting Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983)). 9 1 opportunity to be heard at the parole consideration hearing and a decision informing them of the 2 reasons for the Board’s decision. (Doc. No. 13 at 5.) Since petitioner does not claim that he was 3 denied either of these procedural protections, respondent contends that he has failed to 4 adequately allege any claim that his constitutional right to due process was violated. (Doc. No. 5 15 at 2-3.) 6 Petitioner cites to the decision in Superintendent v. Hill, 472 U.S. 445, 446-447 7 (1986), arguing that he has a due process right to a Board decision that is supported by “some 8 evidence.” (Doc. No. 14 at 4.) Petitioner contends that it his “current lack of danger to the 9 community is obvious” and that this court can review the Board’s decision to ensure that the 10 11 12 “some evidence” standard has been met. (Id.) B. Analysis The Due Process Clause of the Fourteenth Amendment prohibits state action that 13 deprives a person of life, liberty, or property without due process of law. A litigant alleging a 14 due process violation must first demonstrate that he was deprived of a liberty or property interest 15 protected by the Due Process Clause and then show that the procedures attendant upon the 16 deprivation were not constitutionally sufficient. Kentucky Dep’t of Corrections v. Thompson, 17 490 U.S. 454, 459-60 (1989). 18 A protected liberty interest may arise from either the Due Process Clause of the 19 United States Constitution “by reason of guarantees implicit in the word ‘liberty,’” or from “an 20 expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 21 221 (2005). See also Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). The United States 22 Constitution does not, of its own force, create a protected liberty interest in a parole date, even 23 one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981); Greenholtz v. Inmates of 24 Neb. Penal, 442 U.S. 1, 7 (1979) (There is “no constitutional or inherent right of a convicted 25 person to be conditionally released before the expiration of a valid sentence.”). However, a 26 state’s statutory scheme, if it uses mandatory language, “creates a presumption that parole release 10 1 will be granted” when or unless certain designated findings are made, and thereby gives rise to a 2 constitutional liberty interest. Greenholtz, 442 U.S. at 12. See also Allen, 482 U.S. at 376-78. 3 California’s parole scheme gives rise to a liberty interest in parole protected by the 4 federal Due Process Clause. Pirtle v. California Bd. of Prison Terms, 611 F.3d 1015, 1020 (9th 5 Cir. 2010); McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002); see also Swarthout v. 6 Cooke, 131 S. Ct. at 861-62 (finding the Ninth Circuit’s holding in this regard to be a reasonable 7 application of Supreme Court authority); Pearson v. Muntz, 639 F.3d 1185, 1191 (9th Cir. 2011) 8 (“[Swarthout v.] Cooke did not disturb our precedent that California law creates a liberty interest 9 in parole.”). In California, a prisoner is entitled to release on parole unless there is “some 10 evidence” of his or her current dangerousness. In re Lawrence, 44 Cal.4th 1181, 1205-06, 1210 11 (2008); In re Rosenkrantz, 29 Cal.4th 616, 651-53 (2002). In Swarthout, the Supreme Court reviewed two cases in which California 12 13 prisoners were denied parole -- in one case by the Board, and in the other by the Governor after 14 the Board had granted parole. Swarthout, 131 S. Ct. at 860-61. The Supreme Court noted that 15 when state law creates a liberty interest, the Due Process Clause of the Fourteenth Amendment 16 requires fair procedures, “and federal courts will review the application of those constitutionally 17 required procedures.” Id. at 862. The Court concluded that in the parole context, however, “the 18 procedures required are minimal” and that the “Constitution does not require more” than “an 19 opportunity to be heard” and being “provided a statement of the reasons why parole was denied.” 20 Id. (citing Greenholtz, 442 U.S. at 16). The Supreme Court therefore rejected Ninth Circuit 21 decisions that went beyond these minimal procedural requirements and “reviewed the state 22 courts’ decisions on the merits and concluded that they had unreasonably determined the facts in 23 light of the evidence.” Swarthout, 131 S. Ct. at 862. In particular, the Supreme Court rejected 24 the application of the “some evidence” standard to parole decisions by the California courts a 25 ///// 26 ///// 11 1 component of the federal due process standard. Id. at 862-63.7 See also Pearson, 639 F.3d at 2 1191. 3 Here, petitioner asserts that he was denied due process in that the Board’s 2010 4 decision to deny him parole was not supported by “some evidence” as required under California 5 law. As explained above, however, the Supreme Court has held that petitioner’s due process 6 rights are limited and require only that he be provided an opportunity to be heard and to receive a 7 statement of reasons why parole was denied. Respondent has submitted to this court a copy of 8 petitioner’s state habeas petitions filed with the California Court of Appeal for the Second 9 Appellate District and the California Supreme Court. Those petitions included a copy of 10 petitioner’s January 7, 2010, parole suitability hearing transcript and the Board’s decision 11 announced at that hearing. That transcript establishes that petitioner was represented by counsel 12 at his 2010 parole suitability hearing, that petitioner was given the opportunity to be heard, and 13 that he was provided the reasons why parole was denied by the Board panel. (See Doc. No. 13-7 14 at 55 & 65; Doc. No. 13-8 at 25, 34-41.) That is all the process that was due petitioner under the 15 U.S. Constitution. Swarthout, 131 S. Ct. 862; see also Miller, 642 F.3d at 716; Roberts, 640 F.3d 16 at 1046; Pearson, 639 F.3d at 1191. Therefore, respondent’s motion to dismiss petitioner’s due 17 process claim should be granted. 18 III. Ex Post Facto Claim Petitioner’s second claim for relief is based upon his contention that application of 19 20 the provisions of California Proposition 9, also known as Marsy’s Law, at his 2010 parole 21 hearing violated the Ex Post Facto Clause of the United States Constitution because it lengthened 22 23 24 25 26 7 In its per curiam opinion the Supreme Court did not acknowledge that for twenty-four years the Ninth Circuit had consistently held that in order to comport with due process a state parole board’s decision to deny parole had to be supported by “some evidence,” as defined in Superintendent v. Hill, 472 U.S. 445 (1985), that bore some indicia of reliability. See Jancsek v. Oregon Bd. of Parole, 833 F.2d 1389, 1390 (9th Cir. 1987); McQuillion v. Duncan, 306 F.3d 895, 904 (9th Cir. 2002) (“In Jancsek . . . we held that the process that is due in the parole rescission setting is the same as the Supreme Court outlined in Superintendent v. Hill . . . .”). 12 1 the deferral period for his next parole suitability hearing and resulted in his serving a longer 2 prison sentence. For the reasons set forth below, the undersigned finds this claim must be 3 dismissed without prejudice because petitioner is a member of the class in Gilman v. Fisher, No. 4 2:05-cv-00830-LKK-GGH, a class action lawsuit which addresses this issue. 5 The Constitution provides that “No State shall . . . pass any . . . ex post facto 6 Law.” U.S. Const. art. I, § 10. A law violates the Ex Post Facto Clause of the United States 7 Constitution if it: (1) punishes as criminal an act that was not criminal when it was committed; 8 (2) makes a crime’s punishment greater than when the crime was committed; or (3) deprives a 9 person of a defense available at the time the crime was committed. Collins v. Youngblood, 497 10 U.S. 37, 52 (1990). The Ex Post Facto Clause “is aimed at laws that retroactively alter the 11 definition of crimes or increase the punishment for criminal acts.” Himes v. Thompson, 336 12 F.3d 848, 854 (9th Cir. 2003) (quoting Souch v. Schaivo, 289 F.3d 616, 620 (9th Cir. 2002)). 13 See also Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 504 (1995). The Ex Post Facto Clause is 14 also violated if: (1) state regulations have been applied retroactively; and (2) the new regulations 15 have created a “sufficient risk” of increasing the punishment attached to the crimes. Himes, 336 16 F.3d at 854. The retroactive application of a change in state parole procedures violates ex post 17 facto only if there exists a “significant risk” that such application will increase the punishment 18 for the crime. See Garner v. Jones, 529 U.S. 244, 259 (2000). 19 Petitioner appears to have been convicted in 1994, fourteen years prior to the 20 passage of Marsy’s Law in November 2008. Marsy’s Law amended California law governing 21 parole deferral periods. See Gilman v. Davis, 690 F. Supp.2d 1105, 1109–13 (E.D. Cal. 2010) 22 (granting plaintiffs’ motion for a preliminary injunction enjoining enforcement of Marsy’s Law, 23 to the extent it amended former California Penal Code § 3041.5(b)(2)(A)), rev’d sub nom. 24 Gilman v. Schwarzenegger, 638 F.3d 1101 (9th Cir. 2011). Prior to the enactment of Marsy’s 25 Law, the Board deferred subsequent parole suitability hearings with respect to indeterminately- 26 sentenced inmates for one year unless the Board determined it was unreasonable to expect that 13 1 parole could be granted the following year. If that determination was made, the Board could then 2 defer the inmate’s subsequent parole suitability hearing for up to five years. See Cal. Pen. Code 3 § 3041.5(b)(2) (2008). Marsy’s Law, which applied to petitioner at the time of his 2010 parole 4 suitability hearing, amended § 3041.5(b)(2) to impose a minimum deferral period for subsequent 5 parole suitability hearings of three years, and to authorize the Board’s deferral of a subsequent 6 parole hearing for up to seven, ten, or fifteen years. Id. § 3041.5(b)(3) (2010). One of the claims presented by the plaintiffs in the class action Gilman case is that 7 8 the amendments to § 3041.5(b)(2) regarding parole deferral periods imposed under Marsy’s Law 9 violates the Ex Post Facto Clause because “when applied retroactively, [they] create a significant 10 risk of increasing the measure of punishment attached to the original crime.” (Gilman, Doc. No. 11 154–1 at 13 (Fourth Amended/Supplemental Complaint), Doc. No. 183 (Mar. 4, 2009 Order 12 granting plaintiffs’ motion for leave to file a Fourth Amended/Supplemental Complaint.)) With 13 respect to this Ex Post Facto claim, the class in Gilman is comprised of “all California state 14 prisoners who have been sentenced to a life term with possibility of parole for an offense that 15 occurred before November 4, 2008.” (Gilman, Doc. No. 340 (Apr. 25, 2011 Order amending 16 definition of class.)) The Gilman plaintiffs seek declaratory and injunctive relief, including a 17 permanent injunction enjoining the Board from enforcing the amendments to § 3041.5(b) enacted 18 by Marsy’s Law and requiring that the Board conduct a new parole consideration hearing for 19 each member of the class. (Gilman, Doc. No. 154–1 (Fourth Amended/Supplemental Complaint) 20 at 14.) 21 In a class action for injunctive relief certified under Rule 23(b)(2) of the Federal 22 Rules of Civil Procedure a court may, but is not required to, permit members to opt-out of the 23 suit. Crawford v. Honig, 37 F.3d 485, 487 n.2 (9th Cir. 1994). In certifying the Gilman class, 24 the district court found that the plaintiffs satisfied the requirement of Rules 23(a) and 23(b)(2) 25 that “the party opposing the class has acted or refused to act on grounds that apply generally to 26 the class, so that final injunctive relief or corresponding declaratory relief is appropriate 14 1 respecting the class as a whole.” (See Gilman, Doc. No. 182 (Mar. 4, 2009 Order certifying class 2 pursuant to Fed. R. Civ. P. 23(b)(2), Doc. No. 257 (June 3, 2010 Ninth Circuit Court of Appeals 3 Memorandum affirming district court’s order certifying class.)) According to the district court in 4 Gilman, the members of the class “may not maintain a separate, individual suit for equitable 5 relief involving the same subject matter of the class action.” (Gilman, Doc. No. 296 (Dec.10, 6 2010 Order) at 2; see also Doc. No. 278 (Oct. 1, 2010 Order), Doc. No. 276 (Sept. 28, 2010 7 Order), Doc. No. 274 (Sept. 23, 2010 Order.)) There is no evidence before the court at this time 8 in this habeas action suggesting that petitioner has requested permission to opt out of the Gilman 9 class action lawsuit. Rather, petitioner alleges he is a California state prisoner who was sentenced to a 10 11 life term in state prison with the possibility of parole for an offense that occurred before 12 November 4, 2008. (Pet. at 1.) Accepting petitioner’s allegations as true, he is a member of the 13 Gilman class. Similar to the plaintiffs in Gilman, petitioner in this habeas action alleges that 14 Marsy’s Law violates the Ex Post Facto Clause because, when applied retroactively, it creates a 15 risk of increasing the length of his punishment. Petitioner asks the court to issue a writ of habeas 16 corpus. However, even if the court found that the Board’s 2010 ten-year deferral of petitioner’s 17 next parole suitability hearing violated the Ex Post Facto Clause, it would not entitle petitioner to 18 release on parole. Because his Ex Post Facto claim concerns only the timing of petitioner’s next 19 parole suitability hearing, success on that claim would not necessarily result in determinations 20 that petitioner is suitable for release from custody on parole. Rather, petitioner’s equitable relief 21 would be limited to an order directing the Board to conduct a new parole suitability hearing and 22 enjoining the Board from enforcing against petitioner any provisions of Marsy’s Law found to be 23 unconstitutional. This is the same relief petitioner would be entitled to as a member of the 24 pending Gilman class action. (See Gilman, Doc. No. 154–1 (Fourth Amended/Supplemental 25 Complaint) at 14.) 26 ///// 15 1 Therefore, it appears clear that petitioner’s rights will be fully protected by his 2 participation as a class member in the Gilman case. Accordingly, the court will recommend that 3 petitioner’s Ex Post Facto claim presented by him in this federal habeas action be dismissed 4 without prejudice to any relief that may be available to him as a member of the Gilman class. 5 See Crawford v. Bell, 599 F.2d 890, 892 (9th Cir. 1979) (“A court may choose not to exercise its 6 jurisdiction when another court having jurisdiction over the same matter has entertained it and 7 can achieve the same result.”); see also McNeil v. Guthrie, 945 F.2d 1163, 1165 (10th Cir. 1991) 8 (“Individual suits for injunctive and equitable relief from alleged unconstitutional prison 9 conditions cannot be brought where there is an existing class action.”); Gillespie v. Crawford, 10 858 F.2d 1101, 1103 (5th Cir.1988) (“To allow individual suits would interfere with the orderly 11 administration of the class action and risk inconsistent adjudications.”); Johnson v. Parole Board, 12 No. CV 12–3756–GHK (CW), 2012 WL 3104867, at * (C.D. Cal. June 26, 2012) 13 (recommending dismissal of petitioner’s Ex Post Facto challenge to Proposition 9 “without 14 prejudice in light of the ongoing Gilman class action.”) (and cases cited therein), report and 15 recommendation adopted by 2012 WL 3104863 (C.D. Cal. July 25, 2012). 16 IV. Equal Protection Claim In petitioner’s unauthorized sur-reply, he contends in conclusory fashion that his 17 18 federal habeas petition also raises an equal protection claim. (Doc. No. 16 at 2.) It does not. 19 While petitioner may have attempted to challenge the Board’s 2010 decision to deny him parole 20 on equal protection grounds in his state court petitions, he did not do so in his federal petition. 21 Rather, the pending federal petition raises only a due process claim and an ex post facto claim. 22 CONCLUSION 23 In accordance with the above, IT IS HEREBY RECOMMENDED that: 24 1. Defendant’s March 6, 2012 motion to dismiss the pending federal habeas 25 petition as untimely (Doc. No. 13) be denied; 26 ///// 16 1 2 2. Defendant’s March 6, 2012 motion to dismiss petitioner’s due process claim for failure to state a cognizable claim for federal habeas relief (Doc. No. 13) be granted; 3 3. Defendant’s March 6, 2012 motion to dismiss petitioner’s Ex Post Facto 4 Clause claim (Doc. No. 13) be granted and that claim be dismissed without prejudice to any 5 relief that may be available to petitioner as a member of the class in Gilman v. Fisher, No. 2: 05- 6 00830-LKK-GGH P; and 7 4. This action be closed. 8 These findings and recommendations are submitted to the United States District 9 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty- 10 one days after being served with these findings and recommendations, any party may file written 11 objections with the court and serve a copy on all parties. Such a document should be captioned 12 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 13 shall be served and filed within seven days after service of the objections. The parties are 14 advised that failure to file objections within the specified time may waive the right to appeal the 15 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In any objections petitioner elects to file, petitioner shall address whether a 16 17 certificate of appealability should issue in the event he files an appeal of the judgment in this 18 case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or 19 deny a certificate of appealability when it enters a final order adverse to the applicant); Hayward 20 v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc) (prisoners are required to obtain a certificate 21 of appealability to review the denial of a habeas petition challenging an administrative decision 22 such as the denial of parole by the parole board). 23 DATED: December 11, 2012. 24 25 DAD:4 bagd3314.mtd 26 17
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