United States District Court, N.D. California
ORDER REOPENING CASE; LIFTING STAY; DISMISSING EX
POST FACTO CLAIM; AND DENYING CERTIFICATE OF
GONZALEZ ROGERS United States District Judge
the Court are pending motions from Respondent and Petitioner
to reopen the instant matter and lift the stay. Dkts. 15, 16.
In their motions, Respondent argues that this Court should
dismiss the remaining ex post facto claim, while Petitioner
argues that this claim must be addressed on the merits.
See Id. For the reasons outlined below, the Court
reopens this action, lifts the stay, and DISMISSES the
remaining ex post facto claim.
filed the instant pro se action for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, challenging the
decision of the Board of Parole Hearings
(“Board”) to deny him parole at his July 26, 2012
parole suitability hearing. Dkt. 1. As grounds for federal
habeas relief, Petitioner's first two claims alleged that
he was denied due process when the Board (1) required him to
admit to the commitment offense and (2) denied parole without
some evidence that he continues to present a current threat
to public safety. Id. at 24. In his third claim,
Petitioner alleged that the Board's deferral of his next
parole hearing for seven years under Marsy's Law violates
the Ex Post Facto Clause. Id.
Order dated March 17, 2016 Order, the Court granted in part
and denied in part Respondent's motion to dismiss. Dkt.
14. Respondent had argued that the petition must be dismissed
because: (1) Petitioner's first two claims of due process
violations did not entitle him to federal habeas relief; and
(2) Petitioner was a member of a pending class action, in
which the Ninth Circuit Court of Appeals resolved a claim
similar to his ex post facto claim. See Dkt. 8 at
2-4. Thereafter, Respondent filed a supplemental brief in
which Respondent argued that the Court should deny
Petitioner's ex post facto claim because the Ninth
Circuit resolved the issue of extended deferral periods in
Respondent's favor in Gilman v. Brown
(Gilman II), 814 F.3d 1007 (9th Cir. 2016).
See Dkt. 12 at 2. In granting in part
Respondent's motion to dismiss, the Court determined that
Petitioner failed to state federal due process claims when he
challenged his 2012 parole denial. Dkt. 14 at 5-6. However,
the Court denied without prejudice Respondent's request
to dismiss Petitioner's ex post facto claim challenging
the increase in deferral periods following a parole denial.
Id. at 6-7. The Court concluded that, although the
Ninth Circuit had decided the ex post facto issue in favor of
Respondent, the Gilman II decision was not final.
Id. at 7. Accordingly, this Court stayed these
proceedings until the Ninth Circuit issued the mandate in
Gilman II. Id. Once the mandate issued, the
Court ordered the parties to move to reopen the action and
lift the stay, and directed Respondent to “file a
statement regarding the manner in which it intends to
proceed.” Id. at 8.
and Petitioner now move to reopen and lift the stay because
the Ninth Circuit issued its mandate, finalizing its
Gilman II decision. Dkt. 15-1 at 2. The Court GRANTS
the parties' motions to reopen the case and lift the
stay. Dkts. 15, 16. Respondent also moves dismiss the ex post
facto claim because it is precluded by Gilman II.
See Yong v. INS, 208 F.3d 1116, 1119 n.2 (9th Cir.
2000) (“[O]nce a federal circuit court issues a
decision, the district courts within that circuit are bound
to follow it . . . .”).
Court agrees that Petitioner's claim that application of
Marsy's Law to defer his parole eligibility hearings
violates the Ex Post Facto Clause is foreclosed by Gilman
II. In 2008, the voters approved Proposition 9, the
“Victims' Bill of Rights of 2008: Marsy's Law,
” which modified the availability and frequency of
parole hearings. Specifically, Proposition 9 provides that
the board will hear each case every fifteen years unless it
opts to schedule the next hearing in three, five, seven or
ten years. Cal. Penal Code § 3041.5(b)(3). This means
that the minimum deferral period was increased from one year
to three years, the maximum deferral period was increased
from five years to fifteen years, and the default deferral
period was changed from one year to fifteen years. Gilman
v. Schwarzenneger (Gilman I), 638 F.3d 1101,
1105 (9th Cir. 2011).
Proposition 9 also amended the law governing parole deferral
periods by authorizing the board to advance a hearing date.
The board “may exercise its discretion to hold an
advance hearing sua sponte or at the request of a
prisoner.” Id. In order to request that the
board hold an advance hearing, a prisoner “submits a
petition to advance (‘PTA') setting forth
‘the change in circumstances or new information that
establishes a reasonable likelihood that consideration of the
public safety does not require the additional period of
incarceration of the inmate.” Gilman II, 814
F.3d 1at 1011 (citing Cal. Penal Code § 3041.5(d)(1)).
Gilman I, the Ninth Circuit explained that the
plaintiffs could not succeed on the merits of their ex post
facto challenge to Proposition 9 unless: (1) Proposition 9,
on its face, created a significant risk of increasing the
punishment of California life-term inmates; or (2) the
plaintiffs could demonstrate, by evidence drawn from
Proposition 9's practical implementation, that its
retroactive application will result in a longer period of
incarceration than under the prior law. Gilman I,
638 F.3d at 1107 (citing Garner v. Jones, 529 U.S.
244, 255 (2000)). The Ninth Circuit noted that the changes
required by Proposition 9 appeared to create a significant
risk of prolonging the plaintiffs' incarceration, but
concluded that the availability of advance hearings to the
board precluded relief because such availability sufficiently
reduced the risk of increased punishment for prisoners under
the standard set out in Garner. See Id. at 1108-11.
More recently and definitively in Gilman II, the
Ninth Circuit concluded that Proposition 9 does not violate
the Ex Post Facto Clause because there is no evidence that
Proposition 9 increases the risk of prolonged incarceration;
the PTA process set forth in the California Penal Code,
whereby an inmate can petition to advance a parole
suitability hearing, affords relief from class-wide risk of
prolonged incarceration. See Gilman II, 814 F.3d at
1016-21. The Ninth Circuit has issued its mandate. Dkt. 15-1
at 2. The United States Supreme Court has since denied the
petition for a writ of certiorari. See Madden v.
Brown, No. 16-6598, 2017 WL 69427, *1 (U.S. Jan. 9,
Petitioner's ex post facto claim is foreclosed by
Gilman II As the Court found in its March 17, 2016
Order, Petitioner was a member of the Gilman class,
and therefore he is now precluded under the doctrine of
collateral estoppel from re-litigating the same issues of
fact and law litigated and decided in Gilman II See
Disimone v. Browner, 121 F.3d 1262, 1267 (9th Cir. 1997)
(under doctrine of collateral estoppel, party precluded from
re-litigating issues of fact and law previously litigated and
decided). Therefore, the Court GRANTS Respondent's motion
to dismiss the remaining ex post facto claim. Dkt. 15. Thus,
Petitioner's motion for the Court to address his ex post
facto claim on the merits is DENIED. Dkt. 16.
CERTIFICATE OF APPEALABILITY
certificate of appealability will not issue. See 28
U.S.C. § 2253(c). This is not a case in which
“reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel,529 U.S. ...