Rios v. Warden of CSP-Corcoran

Filing 40

ORDER DISCHARGING 38 ORDER TO SHOW CAUSE signed by Magistrate Judge Erica P. Grosjean on 5/15/2017. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RENO FUENTES RIOS,

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Plaintiff,

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v.

1:11-cv-00667-EPG (PC)
ORDER DISCHARGING ORDER TO SHOW
CAUSE
(ECF NO. 38)

WARDEN OF CSP-CORCORAN,

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Defendant.

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Reno Fuentes Rios (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to

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Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. § 636(c) (ECF No. 37), and no

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other parties have made an appearance. Therefore, pursuant to Appendix A(k)(4) of the Local

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Rules of the Eastern District of California, the undersigned shall conduct any and all proceedings

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in the case until such time as reassignment to a District Judge is required. Local Rule Appendix

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A(k)(3)

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This case was commenced on April 27, 2011, with the filing of a petition for a writ of

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habeas corpus. (ECF No. 1). On June 7, 2011, Magistrate Judge Gary S. Austin (the assigned

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magistrate judge at the time) dismissed the petition, and declined to issue a certificate of

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appealability. (ECF No. 7). Plaintiff appealed. (ECF No. 9). The Ninth Circuit Court of appeals

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granted a certificate of appealibility, but only as to: “(1) whether the California Board of Parole

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Hearings’ implementation of Marsy’s Law to defer appellant’s subsequent parole suitability

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hearing for ten years violated the Ex Post Facto Clause; and (2) whether the delay caused by the

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Board’s failure to timely hold appellant’s seventh parole suitability hearing thereby subjecting

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appellant to Marsy’s Law violated due process and the Ex Post Facto Clause.” (ECF No. 11, p.

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The Ninth Circuit Court of Appeals issued its order on August 26, 2016. (ECF No. 18).

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The Ninth Circuit determined that the claims did not lie at the core of habeas corpus, gave

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Plaintiff leave to amend his petition to assert claims under 42 U.S.C. § 1983, and stated that “[i]f

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any petitioner chooses to amend, the district court should determine in the first instance the

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impact of Gilman on his claims.” (Id. at p. 4).

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On February 13, 2017, Plaintiff amended his petition to assert claims under section 1983.

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(ECF No. 31). On May 2, 2017, the Court issued an order to show cause, directing Plaintiff to

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show cause why all of his non-Marsy’s Law claims should not be dismissed, both because the

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Ninth Circuit Court of Appeals appears to have only given Plaintiff leave to assert claims based

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on Marsy’s law, and because the non-Marsy’s Law claims appear to be barred by the applicable

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statute of limitations. (ECF No. 38). On May 11, 2017, Plaintiff filed his response to the order to

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show cause. (ECF No. 39).

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Plaintiff assets that in his opening brief to the Ninth Circuit Court of Appeals, he included

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several uncertified issues. (ECF No. 39, p. 3). Plaintiff further asserts that these issues “were

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pending the resolution of the U.S. Court of Appeals from the two grounds that were certified,”

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and that the statute of limitations was tolled when Plaintiff filed his notice of appeal. (ECF No.

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39, p. 6). Given Plaintiff’s assertions, the ambiguity in the Ninth Circuit Court of Appeals’ order,

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and the fact that failure to file a case within the statute of limitations is an affirmative defense, the

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Court will discharge its order to show cause. However, any defendant may raise one or both of

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these issues as a defense to the extent these claims proceed past the screening phase.

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Accordingly, based on the foregoing, it is HEREBY ORDERED that the order to show
cause is DISCHARGED. The Court will screen Plaintiff’s complaint in due course.

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IT IS SO ORDERED.
Dated:

May 15, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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