Wickliffe v. Swarthout et al
Filing
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ORDER signed by Magistrate Judge Deborah Barnes on 10/11/2016 ORDERING the petition is DISMISSED without prejudice. Petitioner may amend his pleading and present his ex post fact claim in a civil rights action. The Clerk shall send petitioner a blan k civil rights complaint form. Should petitoner choose to amend, he must file a civil rights complaint within 30 days, in accordance with this order. If petitioner chooses not to amend to assert his ex psot facto claim under 42 U.S.C. § 1983, he should file a notice of voluntary dismissal. (Yin, K)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ERIC WICKLIFFE,
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Petitioner,
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No. 2:11-cv-2172 MCE DB P
v.
ORDER
GARY SWARTHOUT,
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Respondent.
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Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus
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pursuant to 28 U.S.C. § 2254. In his petition filed August 16, 2011, petitioner challenged his
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October 29, 2009 parole denial. Petitioner argued that Marsy's Law1 violates the Ex Post Facto
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Clause and that the decision of the California Board of Parole Hearings (BPH) violated his rights
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to due process. (See Pet., ECF No. 1 at 22-24.) On September 21, 2011, the court dismissed the
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petition. The court dismissed petitioner’s due process claim based on Swarthout v. Cooke, 562
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U.S. 216, 219-22 (2011), and dismissed petitioner’s ex post facto claim on two grounds. First,
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the court found that petitioner failed to state a claim cognizable on habeas corpus. Second, the
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In 2008, Marsy’s Law (Proposition 9) amended California Penal Code § 3041.5, among other
things. The amendment increased the period between parole suitability hearings from one to
three years.
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court noted that petitioner was a class member in the Gilman v. Brown2 class action which
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involved the same issues and therefore he could not maintain a separate, individual suit for
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equitable relief. (ECF Nos. 6 at 3-5; 7.)
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Petitioner appealed the ruling. The Ninth Circuit Court of Appeals granted a certificate of
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appealability only as to petitioner’s first claim alleging ex post facto violations. During the
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pendency of the appeal, the Ninth Circuit decided that the claims presented in Gilman challenging
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the increase in length of time before subsequent parole suitability hearings did not violate the Ex
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Post Facto Clause. Gilman v. Brown, 814 F.3d 1007, 1021 (9th Cir. 2016).
On August 26, 2016, the Ninth Circuit vacated this court’s ruling and remanded the matter
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to this court for further proceedings. (ECF No. 17.) The Ninth Circuit ruled that in light of
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Nettles v. Grounds, No. 12-16935, 2016 WL 4072465 (9th Cir. July 26, 2016), the court lacked
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jurisdiction to rule on petitioner’s ex post facto claim in a habeas proceeding and directed the
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court on remand to provide petitioner leave to amend to assert his claim in a civil rights action
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under 42 U.S.C. § 1983. (ECF No. 17 at 4.) The Ninth Circuit warned, however, that should
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petitioner choose to seek section 1983 relief, the court should first address the impact of Gilman
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on petitioner’s claims. On October 3, 2016, 2016, the Ninth Circuit issued its mandate pursuant
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to Rule 41(a) of the Federal Rules of Appellate Procedure. (ECF No. 19.)
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In an appropriate case a habeas petition may be construed as a section 1983 complaint.
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Nettles, 2016 WL 4072465, *10. However, the court notes that there are several significant
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differences in proceeding in habeas corpus compared to a civil rights action. For instance, the
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filing fee for a habeas petition is $5, and if leave to proceed in forma pauperis is granted, the fee
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is forgiven. For civil rights cases, however, the fee is now $400 and under the Prisoner Litigation
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Reform Act the prisoner is required to pay $350, even if granted in forma pauperis status, by way
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of deductions from income to the prisoner's trust account. See 28 U.S.C. 1915(b)(1). A prisoner
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who might be willing to file a habeas petition for which he or she would not have to pay a filing
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fee might feel otherwise about a civil rights complaint for which the fee would be deducted from
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The court previously identified this case as Gilman v. Fisher. However, it has more recently
been titled Gilman v. Brown and that is how it is identified herein.
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income to his or her account. Also, a civil rights complaint which is dismissed as malicious,
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frivolous, or for failure to state a claim would count as a "strike" under 28 U.S.C. § 1915(g),
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which is not true for habeas cases. Based on these differences between habeas and civil rights
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cases, rather than construe the petition as a civil rights action, the court will give petitioner an
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opportunity to amend to assert a claim under 42 U.S.C. § 1983 if he chooses.
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Accordingly, IT IS HEREBY ORDERED as follows:
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1. The petition is dismissed without prejudice. Petitioner may amend his pleading and
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present his ex post fact claim in a civil rights complaint pursuant to 42 U.S.C. § 1983,
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rather than a habeas petition. The Clerk of Court shall send petitioner a blank civil
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rights complaint form along with a copy of this order.
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2. Should petitioner choose to amend and present this claim in a civil rights action, he
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must file a civil rights complaint within thirty days of the filed date of this order. In
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addition, in the civil rights complaint, petitioner must do the following:
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a.
Show cause why the civil rights complaint should not be subject to dismissal
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because petitioner is a member of the plaintiff class in Gilman v. Brown, 814
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F.3d 1007 (9th Cir. 2016), which is comprised of "all California State prisoners
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who have been sentenced to a life term with the possibility of parole for an
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offense that occurred before November 4, 2008.” See Gilman v. Brown, 110
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F. Supp. 3d 989, 990 (E.D. Cal. 2014), rev’d, 814 F.3d 1007 (9th Cir. 2016).
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Members of the Gilman class "may not maintain a separate, individual suit for
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equitable relief involving the same subject matter of the class action." See
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Crawford v. Bell, 599 F.2d 890, 892-93 (9th Cir.1979); see also McNeil v.
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Guthrie, 945 F.2d 1163,1165 (10th Cir. 1991); Gillespie v. Crawford, 858 F.2d
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1101, 1103 (5th Cir. 1988) (en banc). Furthermore, the Ninth Circuit in
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Gilman held that the increase in length of time before subsequent parole
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suitability hearings did not violate the Ex Post Facto Clause. Gilman v.
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Brown, 814 F.3d 1007, 1021 (9th Cir. 2016).
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b. Make the complaint a stand-alone pleading. The court cannot refer to
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petitioner’s dismissed habeas petition in order to make the complaint complete.
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Local Rule 220 requires that a new complaint be complete in itself without
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reference to any prior pleading.
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3. If petitioner chooses not to amend to assert his ex post facto claim under 42 U.S.C. §
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1983, he should file a notice of voluntary dismissal under Federal Rule of Civil
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Procedure 41(a)(1). Petitioner’s failure to file a complaint or otherwise respond to this
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order will result in a recommendation that his action be dismissed pursuant to Federal
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Rule of Civil Procedure 41(b) and Local Rule 110.
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Dated: October 11, 2016
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DLB:9
DLB1/prisoner-habeas/Wick2172.am
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