Rios v. Warden of CSP-Corcoran
ORDER DENYING Motion for Leave to Amend Ex Post Facto Claim and to Conduct an Evidentiary Hearing; ORDER DENYING Request for Appointment of Counsel; ORDER GRANTING Extension of Time to File Amended Complaint re 43 , signed by Magistrate Judge Erica P. Grosjean on 9/21/17. Thirty Day Deadline. (Marrujo, C)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
RENO FUENTES RIOS,
ORDER DENYING MOTION FOR LEAVE
TO AMEND EX POST FACTO CLAIM
AND TO CONDUCT AN EVIDENTIARY
Case No. 1:11-cv-00667-EPG-PC
WARDEN OF CSP-CORCORAN,
ORDER DENYING REQUEST FOR
APPOINTMENT OF COUNSEL
ORDER GRANTING EXTENSION OF
TIME TO FILE AMENDED COMPLAINT
(ECF No. 43)
Reno Fuentes Rios (“Plaintiff”) is a state prisoner proceeding pro se and in forma
20 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the
21 jurisdiction of the United States Magistrate Judge in this action pursuant to 28 U.S.C. § 636(c),
22 and no other parties have made an appearance. (ECF No. 37). Therefore, pursuant to Appendix
23 A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall conduct
24 any and all proceedings in the case until such time as reassignment to a District Judge is
This case was commenced on April 27, 2011, with the filing of a petition for a writ of
28 habeas corpus, challenging denial of parole as well as Plaintiff’s underlying conviction. (ECF
1 No. 1). On June 7, 2011, the Court dismissed the petition. (ECF No. 7). Plaintiff filed an appeal,
2 and on August 26, 2016, the Ninth Circuit vacated the judgment and remanded this matter. (ECF
3 No. 18). The Ninth Circuit instructed that Plaintiff should be afforded leave to amend the petition
4 to assert claims under 42 U.S.C. § 1983 and that if Plaintiff chose to assert § 1983 claims, “the
5 district court should determine in the first instance the impact of Gilman on his claims.” (ECF
6 No. 18 at 4).
Following remand, Plaintiff filed a complaint and this case was converted to a civil rights
8 action under 42 U.S.C. § 1983. (ECF Nos. 31, 33). On August 9, 2017, the Court issued a
9 screening order, which: (1) dismissed without leave to amend Plaintiff’s ex post facto and Eighth
10 Amendment claims, and (2) dismissed with leave to amend Plaintiff’s retaliation and due process
11 claims. (ECF No. 42). On September 11, 2017, Plaintiff filed the instant motion, requesting: (1)
12 leave to amend the ex post facto claim; (2) an extension of time to file an amended complaint;
13 and (3) appointment of counsel. (ECF No. 43).
A. Leave to Amend the Ex Post Facto Claim
1. Proposition 9 (“Marsy’s Law”)
In 2008, California voters passed Proposition 9, the “Victims’ Bill of Rights Act of 2008:
18 Marsy’s Law.” Gilman v. Schwarzenegger (“Gilman I”), 638 F.3d 1101, 1103 (9th Cir. 2011);
19 Gilman v. Brown (“Gilman II”), 814 F.3d 1007, 1010–11 (9th Cir. 2016). The Ninth Circuit has
20 described California’s parole scheme and the modifications resulting from Marsy’s Law as
Before the passage of Proposition 9, prisoners sentenced to life
with the possibility of parole received an annual parole-suitability
hearing by default. After denying such a prisoner parole, if the
Board determined that it was not reasonable to expect that the
prisoner would be granted parole within a year, the Board could
schedule the prisoner’s next parole hearing up to five years later
for murderers and up to two years later for non-murderers.
Following the passage of Proposition 9, after denying such a
prisoner parole, the Board may schedule his next parole hearing
fifteen, ten, seven, five, or three years later (the “deferral periods”).
Notwithstanding these deferral periods, Proposition 9 allows an
inmate to request that the Board advance the date of his next parole
hearing. To do so, an inmate 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.” Cal. Penal Code
§ 3041.5(d)(1). The Board has sole discretion to grant or deny a
PTA; it may also advance an inmate’s next parole hearing sua
sponte. Id. § 3041.5(b)(4), (d)(2). If the Board denies the inmate’s
PTA, the inmate may not submit another PTA for three
years. Id. § 3041.5(d)(3).
7 Gilman II, 814 F.3d at 1011.
2. Gilman Class Action
In 2005, Richard Gilman and other California inmates convicted of murders committed
10 before November 2, 1988, filed suit against California challenging a different proposition that
11 had been passed by voters in 1988. In 2009, the complaint was amended to allege that Marsy’s
12 Law violated the Ex Post Facto Clause, and Gilman moved for a preliminary injunction to bar
13 enforcement of Marsy’s Law. The district court granted the motion. On interlocutory appeal, the
14 Ninth Circuit reversed and rejected the facial challenge to Marsy’s Law. Gilman I, 638 F.3d at
Following a bench trial, the district court concluded that “the PTA process is not
17 sufficient to protect inmates from the ex post facto problems inherent in Proposition 9.” Gilman
18 v. Brown, 110 F. Supp. 3d 989, 1012 (E.D. Cal. 2014). The district court ordered the Board to
19 apply California Penal Code section 3041.5, as it existed prior to Proposition 9, to all class
20 members. Gilman, 110 F. Supp. 3d at 1016. On appeal, the Ninth Circuit reversed, finding:
The district court committed legal error by basing its findings
principally on speculation and inference, rather than concrete
evidence demonstrating that the PTA process failed to afford relief
from the classwide risk of lengthened incarceration posed by
Proposition 9. It erred by substituting its own judgment for the
Board’s regarding which PTAs ought to be granted. And the
district court’s findings of “structural problems” in the PTA
process lack sufficient support in the record. The remaining
findings, viewed under the correct legal standard, are insufficient
to support a conclusion that, on this record, an as-applied Ex Post
Facto Clause violation has occurred. We therefore reverse the
district court’s findings and injunction as to Proposition 9.
28 Gilman II, 814 F.3d at 1021.
In support of his motion for leave to amend the ex post facto claim, Plaintiff argues that
3 the Gilman class action did not properly represent the interests of non-murder offenders such as
4 himself because eighty-one percent of the Gilman class was convicted of murder whereas
5 Plaintiff was convicted of kidnapping. (ECF No. 43 at 4–7).
As set forth in the screening order, the Gilman class with respect to the Proposition 9 ex
7 post facto claim consisted of “all California state prisoners who have been sentenced to a life
8 term with the possibility of parole for an offense that occurred before November 4, 2008.”
9 Gilman v. Brown, 110 F. Supp. 3d 989, 990 (E.D. Cal. 2014). This Court dismissed Plaintiff’s ex
10 post facto claim without leave to amend, finding that “Plaintiff is precluded from relitigating the
11 same ex post facto claim and issues that were litigated and decided in Gilman II” because
12 “Plaintiff falls within the Gilman class, and he does not allege that he opted out of the Gilman
13 class.” (ECF No. 42 at 11) (footnote omitted).
Although Plaintiff asserts that the Gilman class action did not properly represent his
15 interests as a prisoner convicted of a non-murder offense, he provides no support for this
16 assertion. The Gilman class action “marshaled evidence of grants and denials of PTAs”1 in an
17 attempt to establish that the PTA process did not sufficiently reduce the risk of increased
18 punishment for prisoners. Gilman II, 814 F.3d at 1017. The PTA evidence marshaled by the
19 Gilman class action was not limited to prisoners convicted of murder offenses, and the Ninth
20 Circuit found that the record was insufficient to establish an as-applied Ex Post Facto Clause
21 violation. Gilman II, 814 F.3d at 1021. Plaintiff did not opt out of the Gilman class, and his ex
22 post facto claim is duplicative of the Gilman class’s claim.2 Therefore, Plaintiff is precluded
23 from relitigating the same ex post facto claim and issues that were litigated and decided in
24 Gilman. See Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 874 (1984) (“[U]nder
“This evidence included cases in which (1) the PTA was granted and, at the consequent advance hearing, parole
26 was granted; (2) the PTA was granted, but parole was ultimately denied; and (3) the PTA was denied, resulting in no
advance hearing.” Gilman II, 814 F.3d at 1017.
Plaintiff makes no new allegations regarding the deficiencies of the PTA process that were not addressed by the
Gilman class action. Plaintiff merely makes conclusory statements that the PTA process does not sufficiently reduce
the risk of increased punishment. “[A] decrease in the frequency of parole hearings—without more—is not
sufficient to prove a significant risk of lengthened incarceration.” Gilman II, 814 F.3d at 1016.
1 elementary principles of prior adjudication a judgment in a properly entertained class action is
2 binding on class members in any subsequent litigation.”).
Accordingly, the Court denies Plaintiff’s motion for leave to amend his ex post facto
4 claim and his request to conduct an evidentiary hearing on the ex post facto claim.
B. Appointment of Counsel
Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.
7 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d
8 952 (9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 28
9 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa,
10 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the Court may request
11 the voluntary assistance of counsel pursuant to § 1915(e)(1). Rand, 113 F.3d at 1525.
Without a reasonable method of securing and compensating counsel, the Court will seek
13 volunteer counsel only in the most serious and exceptional cases. In determining whether
14 “exceptional circumstances exist, the district court must evaluate both the likelihood of success
15 of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the
16 complexity of the legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks and
17 citations omitted).
The Court will not order appointment of counsel at this time. Having reviewed the record
19 in this case, the Court cannot make a determination that Plaintiff is likely to succeed on the
20 merits of his claims, and it appears that Plaintiff can adequately articulate his claims and respond
21 to Court orders. Plaintiff is advised that he is not precluded from renewing his motion for
22 appointment of counsel at a later stage of the proceedings.
Based on the foregoing, it is HEREBY ORDERED that:
evidentiary hearing is DENIED;
Plaintiff’s motion for leave to amend the ex post facto claim and to conduct an
Plaintiff’s request for appointment of counsel is DENIED;
Plaintiff’s motion for an extension of time is GRANTED. Within THIRTY (30)
days from the date of service of this order, Plaintiff may file a First Amended
Complaint attempting to cure the deficiencies identified in the screening order
(ECF No. 42) if he believes additional true factual allegations would state a claim
for retaliation and violation of due process;
Should Plaintiff choose to amend the complaint, Plaintiff shall caption the
amended complaint “First Amended Complaint” and refer to the case number
If Plaintiff fails to file an amended complaint within thirty (30) days, the Court
will dismiss the case for failure to state a claim and failure to comply with a Court
IT IS SO ORDERED.
September 21, 2017
UNITED STATES MAGISTRATE JUDGE
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