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Thomas Colt v. Gary Swarthout

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


November 30, 2011

THOMAS COLT, PETITIONER,
v.
GARY SWARTHOUT, RESPONDENT.

ORDER

Petitioner is a state prisoner proceeding without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. Petitioner challenges the decision of the California Board of Parole Hearings to deny him parole at a 2009 parole consideration hearing. Pet. at 6.*fn1 He claims that the Board's decision was unconstitutional because it denied parole for seven years pursuant to Marsy's Law, in violation of the Ex Post Facto Clause. Id. at 11. On October 3, 2011, the court recommended petitioner's writ of habeas corpus be dismissed because petitioner is already a member of a class action -- Gilman v. Fisher, No. Civ. S-05-0830 LKK GGH -- which addresses the same issues. Dckt. No. 7 at 2, 5. Currently before the court is petitioner's motion to stay. Dckt. No. 10. For the reasons explained below, petitioner's request is denied.

Petitioner requests to stay the proceedings pending the outcome of two cases before the California Supreme Court: In re Vicks, 195 Cal.App.4th 475, 125 Cal.Rptr. 3d 627 (2011), reh'g denied (June 3, 2011), review granted and opinion superseded, 255 P.3d 952 (Cal. 2011), and In re Reed, D058592, 2011 WL 3035393 (Cal.Ct.App. July 25, 2011), review granted (Oct. 12, 2011). Id. at 1. Petitioner contends the California Court of Appeal found in both cases that Marsy's law violated the Ex Post Facto Clause. Id. But this court has already held that petitioner's rights will be "fully protected by his participation as a class member" in Gilman. Dckt. No. 7 at 4. Thus, any influence that these two California Supreme Court cases may have on petitioner's claim is properly addressed in the Gilman action.

In the alternative, petitioner requests an extension of time to file objections to this court's October 4 findings and recommendations.

Accordingly, IT IS HEREBY ORDERED:

1. Petitioner's motion to stay is denied; and

2. Petitioner's motion for extension of time to file objections is granted. Petitioner may file his objections within 30 days of the date of this order.


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