The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Petitioner, a state prisoner proceeding pro se, has purportedly filed a petition pursuant to 28 U.S.C. § 2254.*fn2 The docket indicates that petitioner paid the filing fee. Petitioner sets forth that he was convicted, pursuant to a guilty plea, of attempted murder and personal use of a firearm in Riverside, California and sentenced to a term of 18-years-to-life in 1995. Petition, p. 1. Petitioner by his present filing neither specifically identifies the parole denial decision he challenges nor does he set forth the basis of his challenge to any such decision. See Petition, pp. 5-6. Rather, the two grounds he raises relate solely to petitioner's having apparently been denied another parole suitability hearing by the Board of Parole Hearings (BPH) (at the unidentified parole hearing) for ten years. Id.
As his first ground, petitioner claims that the ten-year period violates the ex post facto clause because in 1995, when he was sentenced, the maximum parole denial period was five years and that retroactive application of Marsy's Law alters not only the conditions of his sentence but the terms of his plea agreement.*fn3 Petition, p. 5. In his second ground, petitioner claims that the ten-year denial, which he avers is more than half his original sentence, is a draconian application and violates the Eighth Amendment's cruel and unusual punishment clause. Id.
In failing to challenge the substance of the underlying parole denial decision itself, petitioner has failed to frame claims pursuant to 28 U.S.C. § 2254.
Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. 2254, and a complaint under the Civil Rights Act of 1871, Rev. Stat. 1979, as amended, 42 U.S.C. 1983. Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus, Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); requests for relief turning on circumstances of confinement may be presented in a § 1983 action.
Muhammad v. Close, 540 U.S.749, 750, 124 S.Ct. 1303, 1304 (2004) (per curiam). The Supreme Court has determined that where prisoners challenged the constitutionality of state procedures to deny parole eligibility or suitability, these claims were cognizable under 42 U.S.C. § 1983. Wilkinson v. Dotson, 544 U.S. 74, 82, 125 S.Ct. 1242, 1248 (2005) ("Success...does not mean immediate release from confinement or a shorter stay in prison" but "at most [a] new eligibility review" or "a new parole hearing...."). Moreover, the High Court expressly noted that a claim seeking "an injunction barring future unconstitutional procedures did not fall within habeas' exclusive domain." Id. at 81, 125 S.Ct. at 1247 [emphasis in original.] Even earlier, the Ninth Circuit had found that the challenge of inmates to a sex offender treatment program as a violation of, inter alia, the ex post facto clause and their due process rights was appropriate under § 1983 because victory could only result in "a ticket to get in the door of the parole board....," and did not undermine the validity of convictions or continued confinement. Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir. 1997).
The case is also complicated by the fact that a 42 U.S.C. § 1983 action is pending with respect to the validity of the Marsy's Law provision at issue. Gilman v. Fisher, CIV-S-05-0830 LKK GGH, is a case which proceeds as a class action on behalf of prisoners convicted of murder and serving a sentence of life with the possibility of parole with at least one parole denial, challenging the state procedures denying class members parole as well as the deferred reconsideration following a denial. The Ninth Circuit has affirmed Judge Karlton's order certifying the class. See Mandate, filed on June 28, 2010, in Gilman v. Fisher, CIV-S-05-0830 LKK GGH (Docket # 258), of which this court takes judicial notice.*fn4 Should petitioner, as a prisoner convicted of attempted murder and serving a life term with the possibility of parole be deemed a member of the class, he may not as a member plaintiff of a class action for equitable relief from prison conditions maintain a separate, individual suit for equitable relief involving the same subject matter of the class action. See Crawford v. Bell, 599 F.2d 890, 892-93 (9th Cir.1979); see also McNeil v. Guthrie, 945 F.2d 1163,1165 (10th Cir. 1991) ("Individual suits for injunctive and equitable relief from alleged unconstitutional prison conditions cannot be brought where there is an existing class action."); Gillespie v. Crawford, 858 F.2d 1101, 1103 (5th Cir.1988) (en banc) ("To allow individual suits would interfere with the orderly administration of the class action and risk inconsistent adjudications.").
Even if petitioner, as an attempted murderer, may not fit the parameters of the Gilman class action, it is nevertheless generally in the context of an action pursuant to 42 U.S.C. § 1983 that petitioner, as plaintiff, may challenge the constitutionality of Marsy's Law. Here, as noted, petitioner challenges the validity of a parole statute or regulation on the basis that its application to him violates the ex post facto clause. Although petitioner's ultimate goal is a speedier release from incarceration, the immediate relief sought here vis-a-vis Marsy's Law is a speedier opportunity to attempt to convince BPH once again that he should be released; that is too attenuated from any past finding by the BPH of parole suitability for such a claim to sound in habeas.
The court will afford the warden an opportunity to be heard on the question of whether on not petitioner qualifies as a Gilman class member. If he does, the petition will be dismissed and petitioner will proceed as a member of the Gilman class. If he does not, the petition will be dismissed with leave granted for petitioner, as plaintiff, to file an individual § 1983 civil rights action, challenging the constitutionality of the application of Marsy's Law to him. Thus, in either event, petitioner may not proceed as to the future aspects of the unidentified BPH decision in a habeas petition.
Accordingly, IT IS ORDERED that:
1. Mike McDonald, Warden, is substituted in as respondent in place of the "California Board of Pardons," and the Clerk of the Court is directed to note the ...