Anthony Elijah Kilgore v. Elvin Valenzuela

Filing 22

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge Beverly Reid O'Connell for Report and Recommendation (Issued) 21 . The Court accepts and adopts the Magistrate Judge's Report and Recommendation. IT IS ORDERED that Judgment be entered denying and dismissing Petitioner's ex post facto claim without prejudice and denying and dismissing Petitioner's other claims with prejudice. (Attachments: # 1 R&R) (dml)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ANTHONY ELIJAH KILGORE,

) NO. CV 14-722-BRO(E)
)
Petitioner,
)
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v.
) REPORT AND RECOMMENDATION OF
)
ELVIN VALENZUELA, Warden,
) UNITED STATES MAGISTRATE JUDGE
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Respondent.
)
______________________________)

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This Report and Recommendation is submitted to the Honorable

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Beverly Reid O’Connell, United States District Judge, pursuant to 28

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U.S.C. section 636 and General Order 05-07 of the United States

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District Court for the Central District of California.

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PROCEEDINGS

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Petitioner filed a “Petition for Writ of Habeas Corpus By a

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Person in State Custody” on January 30, 2014.

Respondent filed a

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“Notice of Motion and Motion to Dismiss, etc.” (“Motion”) on March 28,

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2014.

Petitioner filed an Opposition on June 27, 2014.

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BACKGROUND

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In 1987, Petitioner suffered a conviction for first degree murder

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and received a sentence of twenty-five years to life (Petition, p. 2).

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On September 9, 2009, the California Board of Prison Terms (“Board”)

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deemed Petitioner unsuitable for parole and denied parole for ten

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years (Petition, Ex. D, ECF Document No. 1-1, pp. 38-43).1

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March 25, 2012, Petitioner submitted to the Board a “Petition to

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Advance Hearing Date,” invoking California Penal Code Section

On

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3041.5(b), a provision of “Marsy’s Law” (Petition, ECF Document No.

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1-1, pp. 1-2).2

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Commissioner ordered a full review (Petition, Ex. A, ECF Document No.

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1-1, p. 4; Respondent’s Lodgment 1, p. 0003).

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Board Commissioner/Deputy Commissioner denied the “Petition to Advance

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Hearing Date,” stating that Petitioner had failed to establish a

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“reasonable likelihood that consideration of the public and victim’s

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safety [did] not require the additional incarceration” (Petition, Ex.

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A, ECF Document No. 1-1, pp. 4-5; Respondent’s Lodgment 1, pp. 0003-

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0004).

On April 10, 2012, a Board Commissioner/Deputy

On July 19, 2012, a

The Board Commissioner/Deputy Commissioner stated:

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Because the Petition and attached exhibits do not bear
consecutive page numbers, the Court uses the ECF pagination.
Although some of the pages of the referenced exhibit are out of
order and two pages are missing, it clearly appears from the
exhibit that the Board denied parole for ten years.
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Section 3041.5(b) allows an inmate to request that the
Board exercise its discretion to advance a parole suitability
hearing to an earlier date, “by submitting a written request to
the board, with notice, upon request, and a copy to the victim
which shall set 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.”
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Inmate’s supporting documents do not address the issues

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raised by the commissioner’s [sic] during the denial.

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inmate did not speak to the panel[.]

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background or support that would allow this evaluator to

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provide a proper analysis.

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provided by the inmate generates more questions than

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specific responses.

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recommended by the panel.

The

Therefore, there is no

Further the letter of insight as

Kilgore still needs more time as

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(Petition, Ex. A, ECF Document No. 1-1, p. 5; Respondent’s Lodgment 1,

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p. 0004).

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Petitioner filed a habeas corpus petition in the Los Angeles

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County Superior Court, which that court denied on the ground that the

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Board’s denial of Petitioner’s “Petition to Advance Hearing Date” was

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not an abuse of discretion under California Penal Code section

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3014.5(d)(2) (Respondent’s Lodgment 2).

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corpus petition in the California Court of Appeal, which that court

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similarly denied on the ground that Petitioner had failed to show an

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abuse of discretion (Respondent’s Lodgments 3, 4).

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habeas corpus petition in the California Supreme Court, which that

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court denied with a citation to People v. Duvall, 9 Cal. 4th 464, 474,

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///
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Petitioner filed a habeas

Petitioner filed a

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37 Cal. Rptr. 2d 259, 886 P.2d 1252 (1995) (Respondent’s Lodgments 5,

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6).3

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PETITIONER’S CONTENTIONS

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Although the Petition is not a model of clarity, Petitioner
appears to be contending that:

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1.

Petitioner did not receive “full review” of his “Petition to

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Advance Hearing Date” because the evidence Petitioner submitted

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assertedly supported that petition; the Board allegedly denied

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Petitioner due process by denying that petition outside Petitioner’s

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presence; the standard allegedly requiring the Board to determine

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whether Petitioner is a threat to the community is “an impossible

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standard” which purportedly violates Due Process (Ground One);

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2.

The application of Marsy’s Law to Petitioner allegedly

violated the Ex Post Facto Clause (Ground Two); and

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The citation to People v. Duvall indicates a denial for
failure to “state fully and with particularly the facts on which
relief is sought.” People v. Duvall, 9 Cal. 4th at 474; see
Gaston v. Palmer, 417 F.3d 1030, 1036-37 (9th Cir. 2005),
modified, 447 F.3d 1165 (9th Cir. 2006), cert. denied, 549 U.S.
1134 (2007); In re Reno, 55 Cal. 4th 428, 482, 146 Cal. Rptr. 3d
297, 283 P.3d 1181 (2012), cert. denied, 133 S. Ct. 2345 (2013).
However, Respondent does not seek dismissal on the ground of
procedural default. Even if a procedural default existed, the
Court properly could deny the Petition on the merits, if
substantive federal law warrants the denial of Petitioner’s
claims. See Lambrix v. Singletary, 520 U.S. 518, 523-25 (1997);
Franklin v. Johnson, 290 F. 3d 1223, 1229, 1232-33 (9th Cir.
2002); Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir.), cert.
denied, 528 U.S. 846 (1999).
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The Board allegedly abused its discretion in denying

Petitioner’s “Petition to Advance Hearing Date” (Ground Three).

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DISCUSSION

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I.

The Court Has Jurisdiction Over the Petition.

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Respondent contends this Court lacks habeas corpus jurisdiction
over the Petition because Petitioner assertedly does not challenge the

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fact or duration of his confinement (Motion, pp. 2-3).

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Respondent’s

contention lacks merit.

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Federal law opens two main avenues to relief on

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complaints related to imprisonment: a petition for habeas

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corpus, 28 U.S.C. § 2254, and a complaint under the Civil

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Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C.

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§ 1983.

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particulars affecting its duration are the province of

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habeas corpus. [citation].

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circumstances of his confinement, however, may be brought

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under § 1983. [citation].

Challenges to the validity of any confinement or to

An inmate's challenge to the

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Hill v. McDonough, 547 U.S. 573, 579 (2006); see also Skinner v.

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Switzer, 131 S. Ct. 1289, 1293 (2011) (“Habeas is the exclusive remedy

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. . . for the prisoner who seeks ‘immediate or speedier release’ from

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confinement.”) (citation omitted); Preiser v. Rodriguez, 411 U.S. 475,

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487-89 (1973) (attack on fact or duration of confinement falls within

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“core” of habeas corpus).
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In Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989)

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(“Bostic”), the Ninth Circuit ruled that habeas corpus jurisdiction

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exists “when a petition seeks expungement of a disciplinary finding

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from his record if expungement is likely to accelerate the prisoner’s

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eligibility for parole.”

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subsequently held that challenges to the procedures used in denying

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parole are cognizable on habeas corpus.

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F.3d 1023, 1024 (9th Cir. 1997).

Following Bostic, the Ninth Circuit

See Butterfield v. Bail, 120

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In arguing that the Court lacks habeas jurisdiction over the

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present Petition, Respondent relies on Neal v. Shimoda, 131 F.3d 818

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(9th Cir. 1997) (“Neal”).

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rights action pursuant to 42 U.S.C. section 1983 challenging their

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placement in a state “sex offender treatment program,” a placement

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which rendered the prisoners ineligible for parole.

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Neal argued that the prisoners’ remedy lay solely in habeas corpus.

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The Neal Court disagreed, reasoning that if the prisoners were

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successful in challenging their sex offender labels, that decision

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would not undermine the validity of the prisoners’ convictions or

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confinement.

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decision would only render the prisoners eligible for parole

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consideration, without altering “the calculus for the review of parole

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requests,” without guaranteeing parole, and without necessarily

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shortening the prisoners’ sentences.

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omitted).

In Neal, two prisoners brought a civil

The defendant in

Neal, 131 F.3d at 824 (footnote omitted).

Rather, the

Neal, 131 F.3d at 824 (footnote

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Subsequent to Neal, in Docken v. Chase, 393 F.3d 1024 (9th Cir.
2004) (“Docken”), a state prisoner argued in habeas corpus that the
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state parole board had violated the Ex Post Facto Clause by changing

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the interval between the prisoner’s parole reviews from one year to

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five years.

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cognizable in habeas corpus, citing Neal.

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Circuit disagreed, however, ruling that habeas remedies and section

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1983 remedies are not “necessarily mutually exclusive.”

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(noting suggestion in Preiser v. Rodriguez, 411 U.S. 475, 499 (1973)

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and dissenting opinion thereto that the two remedies are not mutually

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exclusive); see also Terrell v. United States, 564 F.3d 442, 446-49

The district court deemed the prisoner’s argument not
Id. at 1025-26.

The Ninth

Id. at 1030

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(6th Cir. 2009) (rejecting argument that habeas and section 1983

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actions are mutually exclusive, citing Docken).

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Circuit reconciled the possible conflict between Bostic and Neal by

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deeming Neal to have held “only that § 1983 was an appropriate remedy

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in that case, without reaching the issue of whether it was the

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exclusive remedy.”

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Docken Court held that claims “likely” to affect the duration of

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confinement under Bostic were those “with a sufficient nexus to the

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length of imprisonment so as to implicate, but not fall squarely

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within, the ‘core’ challenges identified by the Preiser Court.”

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Applying Bostic, the Docken Court held that “it was at least possible

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that Docken’s suit would impact the duration of his confinement if the

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Board’s actions in changing the frequency of his parole review

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violated the Ex Post Facto Clause,” and that “the potential

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relationship between [Docken’s] claim and the duration of his

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confinement is undeniable.”

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regarding whether annual parole review would affect the duration of

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Docken’s confinement in light of his status as a “dangerous offender,”

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the Ninth Circuit professed itself “ill-inclined . . . to substitute

In Docken, the Ninth

Docken, 393 F.3d at 1030 (original emphasis).

Id. at 1031.

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The

Id.

Despite the uncertainty

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[its] substantive analysis of the likely outcome of Docken’s parole

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hearings for that of the Board.”

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“when prison inmates seek only equitable relief in challenging aspects

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of their parole review that, so long as they prevail, could

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potentially affect the duration of their confinement, such relief is

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available under the federal habeas statute.”

Id.

The Docken Court concluded that

Id.

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Subsequent Supreme Court authorities have not overruled or
undermined the Ninth Circuit’s holding in Docken.

In Wilkinson v.

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Dotson, 544 U.S. 74, 76 (2005) (“Wilkinson”), the Supreme Court held

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that a claim which, if successful, would result in a new parole

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eligibility review or a new parole hearing was cognizable as a civil

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rights claim under 42 U.S.C. section 1983, and was not required to be

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brought in habeas.

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such a claim from being brought in habeas.4

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541 U.S. 637, 646 (2004), the Supreme Court held that a challenge to a

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particular method of execution was cognizable in a section 1983

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action, but did not decide whether “method-of-execution claims

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generally” should be treated as habeas claims or civil rights claims.

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In Skinner v. Switzer, supra, the Supreme Court held that a prisoner

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could seek DNA testing of crime scene evidence in a civil rights

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action, but did not hold that habeas and civil rights actions are

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mutually exclusive.

The Wilkinson Court did not purport to preclude
In Nelson v. Campbell,

See Skinner v. Switzer, 131 S. Ct. at 1298.

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The Ninth Circuit has interpreted Wilkinson as
“confirm[ing] [the Ninth Circuit’s] prior understanding,
articulated in Docken [citation], that § 1983 and habeas are not
always mutually exclusive.” See Osborne v. District Attorney’s
Office for the Third Judicial District, 423 F.3d 1050, 1055 (9th
Cir. 2005).
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The Ninth Circuit’s holding in Docken controls the jurisdictional

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issue in the present case.

Petitioner’s challenge to the denial of

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his “Petition to Advance Hearing Date” potentially could affect the

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duration of his confinement because the relief could compel the Board

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to accelerate Petitioner’s next suitability hearing and could result

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in an earlier suitability finding.

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jurisdiction to consider the Petition.

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2013 WL 3967652, at *2-3 (N.D. Cal. July 31, 2013); Mendez v. Ochoa,

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2012 WL 4740802, at *1 n.2 (C.D. Cal. Sept. 17, 2012), adopted, 2012

Therefore, this Court has
Accord, Nettles v. Grounds,

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WL 4740458 (C.D. Cal. Oct. 4, 2012); but see Bryant v. Haviland, 2011

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WL 23064 (E.D. Cal. Jan. 4, 2011) (“Bryant”) (without acknowledging

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Docken, deeming the petitioner’s challenge to the deferral provisions

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of Marsy’s Law “too remote” to be cognizable on habeas).

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II.

Petitioner’s Due Process Claim Does Not Merit Habeas Relief.5

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“There is no constitutional or inherent right of a convicted

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person to be conditionally released before the expiration of a

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valid sentence.”

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Correctional Complex, 442 U.S. 1, 7 (1979) (“Greenholtz”).

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instances, however, state statutes may create liberty interests in

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parole release entitled to protection under the federal Due Process

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Clause.

Greenholtz v. Inmates of Nebraska Penal and
In some

See Bd. of Pardons v. Allen, 482 U.S. 369, 371 (1987);

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The Court applies a de novo standard of review to all
of Petitioner’s claims. See Frantz v. Hazey, 533 F.3d 724, 73637 (9th Cir. 2008) (en banc) (federal habeas court may determine
whether the petitioner is “in custody in violation of the
Constitution or laws or treaties of the United States” under 28
U.S.C. section 2254(a) prior to, or in lieu of, applying the
standard of review set forth in 28 U.S.C. section 2254(d)).
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Greenholtz, 442 U.S. at 12.

The Ninth Circuit has held that

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California’s statutory provisions governing parole create such a

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liberty interest.

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Cir. 2010) (en banc), disapproved on other grounds, Swarthout v.

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Cooke, 131 S. Ct. 859 (2011).6

See Hayward v. Marshall, 603 F.3d 546, 555 (9th

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“In the context of parole, . . . the procedures required are

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minimal.”

Swarthout v. Cooke, 131 S. Ct. 859, 862 (2011).

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process requires that the State furnish a parole applicant with an

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opportunity to be heard and a statement of reasons for a denial of

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parole.

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require more.”

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(citation omitted); Styre v. Adams, 645 F.3d 1106, 1108 (9th Cir.

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2011); see also Roberts v. Hartley, 640 F.3d 1042, 1046 (9th Cir.

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2011) (“there is no substantive due process right created by the

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California’s parole scheme”).

Greenholtz, 442 U.S. at 16.

Due

“The Constitution does not

Id.; accord Swarthout v. Cooke, 131 S. Ct. at 862

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The Court assumes arguendo that Greenholtz applies to proceedings

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regarding the deferral or advancement of California parole hearings.

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Petitioner received the benefit of the minimal procedures required in

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Greenholtz.

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Date” and was afforded the opportunity to submit evidence regarding

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“the change in circumstances or new information that establishes a

Petitioner initiated the “Petition to Advance Hearing

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In Swarthout v. Cooke, the Supreme Court did not reach
the question of whether California law creates a liberty interest
in parole, but observed that the Ninth Circuit’s affirmative
answer to this question “is a reasonable application of our
cases.” Swarthout v. Cooke, 131 S. Ct. at 861-62 (citations
omitted).
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reasonable likelihood that consideration of the public safety does not

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require the additional period of incarceration of the inmate.”

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Cal. Penal Code § 3041.5(d)(1).

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statement of reasons for the decision denying the “Petition to Advance

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Hearing Date.”7

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442 U.S. at 16.

See

The Board provided Petitioner with a

The Constitution did not “require more.”

Greenholtz,

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To the extent Petitioner contends the Board denied the “Petition

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to Advance Hearing” without sufficient evidence to support the denial

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and despite Petitioner’s assertedly favorable evidence, Petitioner

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fails to state any claim for federal habeas relief.

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Cooke, supra, the United States Supreme Court rejected the contention

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that the federal Due Process Clause contains a guarantee of

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evidentiary sufficiency with respect to a parole determination.

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Swarthout v. Cooke, 131 S. Ct. at 862 (“No opinion of ours supports

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converting California’s ‘some evidence’ rule into a substantive

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federal requirement.”).

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a parole suitability determination does not implicate federal Due

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Process, the evidentiary sufficiency pertaining to the deferral of a

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suitability determination similarly cannot implicate federal Due

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Process.

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Dec. 4, 2013) (“District Courts throughout the Ninth Circuit have

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consistently rejected claims advanced by state prisoners that the

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Board violates federal law when it denies a petition to advance parole

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hearings”) (citations omitted); Johnson v. Hartley, 2013 WL 440990, at

In Swarthout v.

If the evidentiary sufficiency pertaining to

See Saffold v. Hill, 2013 WL 6283893, at *1 (E.D. Cal.

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Petitioner may dispute the persuasiveness of the
Board’s reasoning, but the Board did furnish Petitioner with a
statement of reasons.
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*2 (E.D. Cal. Feb. 5, 2013) (finding no authority for proposition that

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Board violated federal Due Process by refusing to advance inmate’s

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parole hearing).

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For the foregoing reasons, Petitioner is not entitled to habeas
relief on Ground One of the Petition.

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III. The Court Should Deny Petitioner’s Ex Post Facto Claim Without

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Prejudice Because Petitioner Is a Member of the Gilman Class.

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Petitioner argues that the application of Marsy’s Law to

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Petitioner violates the Ex Post Facto Clause.

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when the Board would deem an inmate serving a life sentence for murder

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unsuitable for parole, the Board would conduct a subsequent parole

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hearing one year later, except the Board could defer the subsequent

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hearing up to five years if the Board found that it was not reasonable

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to expect that parole would be granted sooner.

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Code § 3041.5(b)(2).

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period to fifteen years and also provided for a presumptive deferral

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period of ten years unless the Board “finds by clear and convincing

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evidence that the [statutory] criteria relevant to the setting of

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parole release dates . . . are such that consideration of the public

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and victim’s safety do not require a more lengthy period of

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incarceration. . . .”

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case, the Board has discretion to set a three-, five-, or seven-year

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deferral period.

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ten-year deferral period for Petitioner.

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Id.

Prior to Marsy’s Law,

See former Cal. Penal

Marsy’s Law increased the maximum deferral

See Cal. Penal Code § 3041.5(b)(3)(B).

In such

As previously indicated, the Board imposed a

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Respondent contends that Petitioner is a class member in a class

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action presently pending in the United States District Court for the

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Eastern District of California, Gilman v. Brown, Civ. S 05-830 LKK GGH

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("Gilman").

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equivalent of a suit for injunctive and equitable relief which cannot

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be brought where there exists a pending class action concerning the

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same subject matter.

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Cir. 1979) (district court may dismiss individual plaintiff's action

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where plaintiff is member of a pending class action raising the same

Respondent asserts that the present Petition is the

See Crawford v. Bell, 599 F.2d 890, 892-93 (9th

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claims); see also McNeil v. Guthrie, 945 F.2d 1163, 1165 (10th Cir.

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1991); Gillespie v. Crawford, 858 F.2d 1101, 1103 (5th Cir. 1988) (en

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banc).

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The Gilman plaintiffs allege, among other things, that the

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provisions of Marsy’s Law extending deferral periods violate the Ex

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Post Facto Clause.

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(9th Cir. 2011).8

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certified, pursuant to Rule 23(b)(2) of the Federal Rules of Civil

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Procedure, a class of all California state prisoners convicted of

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murder currently serving sentences of life with the possibility of

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parole.

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aff'd, 382 Fed. App'x 544 (9th Cir. 2010).

See Gilman v. Schwarzenegger, 638 F.3d 1101, 1103
On March 4, 2009, the District Court in Gilman

See Gilman v. Davis, 2009 WL 577767 (E.D. Cal. Mar. 4, 2009),
On April 25, 2011, the

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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). The docket reflects a change in the identity of
the California Governor, a named Defendant. The Gilman caption
presently reflects that California Governor Jerry Brown is the
lead Defendant.
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District Court in Gilman amended the definition of the certified class

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to provide, inter alia, that, as to the Ex Post Facto challenge to the

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deferral periods, the class is defined as "all California state

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prisoners who have been sentenced to a life term with the possibility

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of parole for an offense that occurred before November 4, 2008"

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(Docket Entry 340).

Plaintiff is a member of this class.9

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On February 4, 2010, the District Court in Gilman granted a
preliminary injunction enjoining the defendants from enforcing the

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deferral period provisions of Marsy’s Law as to the named plaintiffs.

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See Gilman v. Schwarzenegger, 690 F. Supp. 2d 1105 (E.D. Cal. 2010),

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rev'd, 638 F.3d 1101 (9th Cir. 2011).

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Circuit reversed, holding that the plaintiffs had failed to show a

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likelihood of success on this claim.

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638 F.3d 1101 (9th Cir. 2011).

On January 24, 2011, the Ninth

See Gilman v. Schwarzenegger,

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Following a bench trial, on February 28, 2014, the District Court

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in Gilman declared, inter alia, that the deferral provisions of

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Marsy’s Law violate the Ex Post Facto Clause (Docket Entry 532).

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District Court ordered the Board to apply former California Penal Code

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section 3014.5 to all class members and to afford all class members an

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annual parole suitability hearing unless the Board finds, under former

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law, that a longer deferral period is warranted (Docket Entry 532).

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The District Court stayed this order for 31 days and indicated that

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the order would “go[] into effect immediately thereafter, unless a

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timely appeal is filed.”

(Id.).

Judgment was entered on February 28,

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The

The Gilman docket does not show that Plaintiff ever
filed an “opt out” request.
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2014 (Docket Entry 533).

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On March 27, 2014, the Gilman Defendants filed a notice of

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appeal.

On April 21, 2014, the plaintiffs filed a motion to enforce

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the judgment, noticed for hearing on May 19, 2014.

On May 5, 2014,

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the defendants filed an opposition to the motion.

On May 12, 2014,

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the plaintiffs filed a Reply.

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vacated the hearing and took the matter under submission.

On May 13, 2014, the District Court

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Because Petitioner is a member of the Gilman class, it appears

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that Petitioner’s interests will be, and are being, represented in

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that action.

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be dismissed without prejudice.

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WL 996215, at *3 (E.D. Cal. Mar. 13, 2014) (recommending that

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petitioner’s Ex Post Facto challenge to Marsy’s Law be dismissed in

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light of Gilman litigation, given petitioner’s putative membership in

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Gilman class); Garcia v. Valenzuela, 2014 WL 683795, at *5 (C.D. Cal.

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Feb. 18, 2014) (same); Smith v. Valenzuela, 2014 WL 348480 (E.D. Cal.

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Jan. 31, 2014) (same); Wallach v. Melanson, 2013 WL 5418051 (S.D. Cal.

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Sept. 26, 2013) (same); Rivers v. Swarthout, 2011 WL 6293756, at *2-3

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(E.D. Cal. Dec. 13, 2011) (same).

For this reason, Petitioner’s Ex Post Facto claim should
See Hung Duong Nguon v. Virga, 2014

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IV.

Petitioner’s Claim that the Board’s Denial of the “Petition to

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Advance Hearing Date” Was an “Abuse of Discretion” Does Not Merit

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Federal Habeas Relief.

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In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws or
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treaties of the United States.

Estelle v. McGuire, 502 U.S. 62, 68

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(1991).

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discretionary rules concerning the advancement of a parole hearing

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date, Petitioner is not entitled to federal habeas relief.

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Roberts v. Hartley, 640 F.3d 1042, 1047 (9th Cir. 2011) (federal

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habeas court is not authorized “to reevaluate California’s application

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of its rules for determining parole eligibility”) (citation omitted);

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see generally Wilson v. Corcoran, 131 S. Ct. 13, 16 (2010) (“We have

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repeatedly held that federal habeas corpus relief does not lie for

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errors of state law”) (citations and internal quotations omitted);

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Estelle v. McGuire, 502 U.S. at 67-68 (same).

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is not entitled to habeas relief on Ground Three of the Petition.

To the extent Petitioner contends the Board violated state

See

Therefore, Petitioner

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RECOMMENDATION

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For the foregoing reasons, IT IS RECOMMENDED that the Court issue

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an Order: (1) accepting and adopting this Report and Recommendation;

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and (2) directing that Judgment be entered denying and dismissing

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Petitioner’s ex post facto claim without prejudice and denying and

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dismissing Petitioner’s other claims with prejudice.10

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DATED: July 10, 2014.

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_____________/S/______________
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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The Court would reach this same ultimate result
regardless of the resolution of the jurisdictional issue
discussed in section I, supra. If no habeas jurisdiction
existed, the Court would convert the present action into a civil
rights action. See Wilwording v. Swenson, 404 U.S. 249, 251-52
(1971); Hanson v. May, 502 F.2d 728, 729-30 (9th Cir. 1974). The
Court then would dismiss Grounds One and Three with prejudice for
failure to state a claim on which relief could be granted and
would dismiss Ground Two without prejudice because
Petitioner/Plaintiff is a member of the Gilman class.
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NOTICE
Reports and Recommendations are not appealable to the Court of

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Appeals, but may be subject to the right of any party to file

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objections as provided in the Local Rules Governing the Duties of

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Magistrate Judges and review by the District Judge whose initials

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appear in the docket number.

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Federal Rules of Appellate Procedure should be filed until entry of

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the judgment of the District Court.

No notice of appeal pursuant to the

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If the District Judge enters judgment adverse to Petitioner, the

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District Judge will, at the same time, issue or deny a certificate of

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appealability.

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and Recommendation, the parties may file written arguments regarding

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whether a certificate of appealability should issue.

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Within twenty (20) days of the filing of this Report