Opinion
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, 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.
PROCEEDINGS
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"); and
The Court adheres to the Petition's idiosyncratic pagination.
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").
BACKGROUND
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).
DISCUSSION
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, holding that the plaintiffs had failed to show a likelihood of success on the merits of this claim. See Gilman v. Schwarzenegger, 638 F.3d at 1101.
The Court takes judicial notice of the docket and records in Gilman v. Brown, Civ. S 05-830 LKK GGH, available on the PACER database. See Mir v. Little Company of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988) (court may take judicial notice of court records). On March 4, 2009, the District Court in Gilman, pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, certified a class of all California state prisoners convicted of murder currently serving sentences of life with the possibility of parole. See Gilman v. Schwarzenegger, 2009 WL 577767 (E.D. Cal. Mar. 4, 2009), aff'd, 382 Fed. App'x 544 (9th Cir. 2010). On September 15, 2010, the Gilman court denied a number of inmates' motions to intervene (Docket Entry 270). The Gilman Court advised the moving parties that if they are members of the Gilman class they may not maintain separate, individual suits for equitable relief involving the same subject matter as the class action.
The Gilman court's docket has been amended to show Governor Brown as the defendant.
Rule 23(b)(2) authorizes certification where "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Rule 23 has been amended since the Gilman court's certification order in a manner not germane to the issues presented here.
The Gilman docket also reflects that, on April 6, 2011, the District Court held an evidentiary hearing on the plaintiffs' motions for a preliminary injunction and to amend the class definition (Docket Entry 334). On April 25, 2011, the District Court in Gilman amended the definition of the certified class to provide, as to the ex post facto challenge to the deferral periods, that the class is "all California state prisoners who have been sentenced to a life term with the possibility of parole for an offense that occurred before November 4, 2008" (Docket Entry 340). On April 5, 2012, the Court denied the Gilman plaintiffs' motion for a preliminary injunction. On May 31, 2012, the Court granted in part and denied in part a defense motion for judgment on the pleadings, but denied the motion as to the Marsy's Law claim (Docket Entry 420; see Gilman v. Brown, 2012 WL 1969200 (E.D. Cal. May 31, 2012).
Petitioner contends that he is not a "certified plaintiff" in the Gilman case (see Traverse, p. 1). Petitioner, who received a sentence of twenty-five years to life in 1984, plainly is a member of the Gilman class. The District Court certified the class pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, which does not afford a class member "opt-out rights." See Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2559 (2011); Ticor Title Ins. C. v. Brown, 511 U.S. 117, 121 (1994).
Petitioner's claim that application of the extended deferral period of "Marsy's Law" to Petitioner violates the Ex Post Facto Clause is the same as the Gilman plaintiffs' ex post facto challenge to the "Marsy's Law" deferral periods. See Gilman v. Schwarzenegger, 638 F.3d at 1106 (stating that, to prevail on their ex post facto challenge to the "Marsy's Law" deferral periods, plaintiffs must show either that the statute, on its face, created a significant risk of increasing the punishment of California life inmates, or that, in its practical implementation, the statute's retroactive application will result in a longer period of incarceration than under prior law) (citation omitted). Therefore, because Petitioner is a member of the Gilman class, Petitioner's ex post facto challenge to "Marsy's Law" contained in the present Petition should be dismissed without prejudice. See Crawford v. Bell, 599 F.2d at 892-93; see also Phinney v. Salinas, 2012 WL 2401573, at *5 (E.D. Cal. June 25, 2012) (dismissing habeas challenge to deferral periods enacted by "Marsy's Law" because petitioner was a member of Gilman class); De Leon v. Hartley, 2011 WL 2143518, at *8-9 (E.D. Cal. May 31, 2011) (same); Brown v. Clark, 2011 WL 2144237, at *6-7 (E.D. Cal. May 31, 2011) (same).
Petitioner's separation of powers claim must be dismissed for a different reason. The claim is not cognizable on federal habeas corpus. Federal habeas relief is available only for violations of the Constitution, treaties or laws of the United States. See 28 U.S.C. § 2254(a); Wilson v. Corcoran, 131 S.Ct. 13, 16 (2010) ("it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts") (original emphasis); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (mere errors in the application of state law are not cognizable on federal habeas review). "[T]he doctrine of separation of powers embodied in the Federal Constitution is not mandatory on the States." Whalen v. United States, 445 U.S. 684, 689 n.4 (1980) (citation omitted); see also Huynh v. San Diego County Probation Dep't, 271 Fed. App'x 681, 682 (9th Cir. 2008); Chromiak v. Field, 406 F.2d 502, 505 (9th Cir. 1969), cert. denied, 396 U.S. 1017 (1970). Accordingly, Petitioner's separation of powers claim should be dismissed with prejudice.
RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; (2) dismissing the ex post facto claim in the Petition without prejudice; and (3) dismissing the separation of powers claim in the Petition with prejudice.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.
IT IS ORDERED that Judgment be entered: (1) dismissing the ex post facto claim in the Petition without prejudice; and (2) dismissing the separation of powers claim in the Petition with prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on Petitioner and counsel for Respondent.
LET JUDGMENT BE ENTERED ACCORDINGLY.
JUDGMENT
Pursuant to the Order Accepting Findings, Conclusions and Recommendations of United States Magistrate Judge,
IT IS ADJUDGED that: (1) the ex post facto claim in the Petition is dismissed without prejudice; and (2) the separation of powers claim in the Petition is dismissed with prejudice.