The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Stephen V. Wilson, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on April 30, 2012. Petitioner challenges a September 23, 2010 decision of a panel of the California Board of Parole Hearings ("Board") deeming Petitioner unsuitable for parole.
Petitioner asserts the following claims:
1. The Board's allegedly retroactive application of the deferral period provisions of "Marsy's Law," California Penal Code section 3041.5(b)(3), assertedly violated the Ex Post Facto Clause (Petition, attachment, pp. "1-to-5-of-11" to "5-to-5-of-11");*fn1 and
2. "Marsy's Law" allegedly usurps the power of the Board to determine an inmate's suitability for parole, thereby assertedly violating the doctrine of separation of powers (id., pp. "2-to-5-to-11" to "3-to-5-to-11").
In 1984, Petitioner received a sentence of twenty-five years to life for murder (Petition, p. 2). On September 23, 2010, the Board conducted a subsequent parole consideration hearing and denied Petitioner parole for ten years (id.; see also Respondent's Lodgment 2, Exhibit "A" thereto).
Petitioner filed habeas corpus petitions in the Los Angeles County Superior Court, the California Court of Appeal and the California Supreme Court, all of which were denied (Respondent's Lodgments 2, 3, 4, 5, 6). /// ///
Prior to "Marsy's Law," when the Board deemed an inmate serving a life sentence for murder unsuitable for parole, the Board would conduct a subsequent parole hearing one year later, except the Board could defer the subsequent hearing up to five years if the Board found that it was not reasonable to expect that parole would be granted sooner. See former Cal. Penal Code § 3041.5(b)(2). "Marsy's Law" increased the maximum deferral period to fifteen years and also provided for a presumptive deferral period of ten years unless the Board "finds by clear and convincing evidence that the [statutory] criteria relevant to the setting of parole release dates . . . are such that consideration of the public and victim's safety do not require a more lengthy period of incarceration. . . ." See Cal. Penal Code § 3041.5(b)(3)(B). As previously indicated, the Board imposed a ten-year deferral period on Petitioner.
Respondent contends that Petitioner is a class member in a class action presently pending in the United States District Court for the Eastern District of California, Gilman v. Schwarzenegger, Civ. S 05-830 LKK GGH ("Gilman"). Respondent asserts that the present Petition is the equivalent of a suit for injunctive and equitable relief which cannot be brought where there exists a pending class action concerning the same subject matter. See Crawford v. Bell, 599 F.2d 890, 892-93 (9th Cir. 1979) (district court may dismiss individual plaintiff's action where plaintiff is member of a pending class action raising the same claims); see also McNeil v. Guthrie, 945 F.2d 1163, 1165 (10th Cir. 1991); Gillespie v. Crawford, 858 F.2d 1101, 1103 (5th Cir. 1988) (en banc).
The Gilman plaintiffs allege, among other things, that the provisions of "Marsy's Law" extending deferral periods violate the Ex Post Facto Clause. See Gilman v. Schwarzenegger, 638 F.3d 1101, 1103 (9th Cir. 2011). On February 4, 2010, the District Court in Gilman granted a preliminary injunction enjoining the defendants from enforcing the deferral period provisions of "Marsy's Law" as to the named Plaintiffs. See Gilman v. Schwarzenegger, 690 F. Supp. 2d 1105 (E.D. Cal. 2010), rev'd, 638 F.3d 1101 (9th Cir. 2011). On January 24, 2011, the Ninth Circuit reversed, ...