Goings v. Cate et al

Filing 5

ORDER signed by Magistrate Judge Edmund F. Brennan on 5/13/13 ORDERING that 2 Motion to Proceed IFP is GRANTED; Petitioners application for a writ of habeas corpus is DISMISSED; The Clerk is directed to close the case; and the Court declines to issue a certificate of appealability. CASE CLOSED.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GEORGE GOINGS, JR.,

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Petitioner,

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No. 2:12-cv-1872 EFB P

vs.
MATTHEW CATE, et al.,

ORDER

Respondents.
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Petitioner is a state prisoner without counsel on a petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. He challenges the decision of the California Board of Parole

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Hearings (“Board”) to deny him parole at a parole consideration hearing held on October 27,

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2010. Petitioner claims the Board’s decision was unconstitutional because it deferred his next

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suitability hearing for three years pursuant to Marsy’s Law, in violation of the Ex Post Facto

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Clause. Pet. 11-14. He further claims that the Board’s 2010 decision was unconstitutional

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because the Board found him unsuitable for parole based on his refusal to admit that he was

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guilty of the underlying offense and failure to secure a place to reside upon release prior to the

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hearing. Id. at 15-16. This proceeding was referred to this court by Local Rule 302 pursuant to

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28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to petitioner’s consent. See E.D.

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Cal. Local Rules, Appx. A, at (k)(4).
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Petitioner seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a).

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Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs

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of suit. Therefore, the request will be granted. See 28 U.S.C. § 1915(a). However, for the

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reasons explained below, the court finds that petitioner’s application for a writ of habeas corpus

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must be dismissed. See Rule 4, Rules Governing § 2254 Cases (requiring summary dismissal of

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habeas petition if, upon initial review by a judge, it plainly appears “that the petitioner is not

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entitled to relief in the district court”).

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I.

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Ex Post Facto Claim
Petitioner first claims the Board violated the Ex Post Facto Clause by deferring his next

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parole hearing for three years pursuant to California Proposition 9, also known as Marsy’s Law.

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As discussed below, the undersigned finds this claim must be dismissed because petitioner is a

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member of the class in Gilman v. Fisher, No. CIV S-05-830 LKK GGH (Gilman), a class action

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lawsuit which addresses this issue.

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The Constitution provides that “No State shall . . . pass any . . . ex post facto Law.” U.S.

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Const. art. I, § 10. “The Ex Post Facto Clause of the Constitution prohibits our state and federal

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governments from retroactively imposing additional punishment for commission of a criminal

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offense.” American Civil Liberties Union of Nevada v. Masto, 670 F.3d 1046, 1052 (9th Cir.

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2012). A law violates the Ex Post Facto Clause of the United States Constitution if it: (1)

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punishes as criminal an act that was not criminal when it was committed; (2) makes a crime’s

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punishment greater than when the crime was committed; or (3) deprives a person of a defense

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available at the time the crime was committed. Collins v. Youngblood, 497 U.S. 37, 52 (1990).

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The Ex Post Facto Clause “is aimed at laws that retroactively alter the definition of crimes or

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increase the punishment for criminal acts.” Himes v. Thompson, 336 F.3d 848, 854 (9th Cir.

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2003) (quoting Souch v. Schaivo, 289 F.3d 616, 620 (9th Cir. 2002)). See also Cal. Dep’t of

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Corr. v. Morales, 514 U.S. 499, 504 (1995). The Ex Post Facto Clause is also violated if: (1)

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state regulations have been applied retroactively; and (2) the new regulations have created a
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“sufficient risk” of increasing the punishment attached to the crimes. Himes, 336 F.3d at 854.

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Courts apply a two-step test to determine whether a newly enacted statute constitutes an

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additional form of punishment. ACLU of Nev., 670 F.3d at 1053. The first step “requires courts

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to determine whether the legislature intended to impose a criminal punishment or whether its

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intent was to enact a nonpunitive regulatory scheme.” Id. If the legislature intended to impose

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merely a civil regulatory regime, the court must determine whether “the law is ‘so punitive either

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in purpose or effect as to negate the State’s intention to deem it civil.’” Id. The retroactive

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application of a change in state parole procedures violates ex post facto only if there exists a

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“significant risk” that such application will increase the punishment for the crime. See Garner v.

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Jones, 529 U.S. 244, 259 (2000).

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Petitioner alleges he was sentenced to twenty-five years to life in prison in 1986,

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approximately 22 years prior to the passage of Marsy’s Law in November 2008. Pet. 1. Marsy’s

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Law amended California law governing parole deferral periods. See Gilman v. Davis, 690 F.

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Supp. 2d 1105, 1109–13 (E.D. Cal. 2010) (granting plaintiffs’ motion for a preliminary

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injunction enjoining enforcement of Marsy’s Law, to the extent it amended former California

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Penal Code § 3041.5(b)(2)(A)), rev’d sub nom. Gilman v. Schwarzenegger, 638 F.3d 1101 (9th

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Cir. 2011). Prior to the enactment of Marsy’s Law, the Board deferred subsequent parole

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suitability hearings with respect to indeterminately-sentenced inmates for one year unless the

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Board determined it was unreasonable to expect that parole could be granted the following year.

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If that determination was made, the Board could then defer the inmate’s subsequent parole

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suitability hearing for up to five years. See Cal. Pen. Code § 3041.5(b)(2) (2008). Marsy’s Law,

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which applied to petitioner at the time of his 2010 parole suitability hearing, amended

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§ 3041.5(b)(2) to impose a minimum deferral period for subsequent parole suitability hearings of

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three years, and to authorize the Board’s deferral of a subsequent parole hearing for up to seven,

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ten, or fifteen years. Id. § 3041.5(b)(3) (2010).

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One of the claims presented by the plaintiffs in the class action Gilman case is that the

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amendments to § 3041.5(b)(2) regarding parole deferral periods imposed under Marsy’s Law

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violates the Ex Post Facto Clause because “when applied retroactively, [they] create a significant

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risk of increasing the measure of punishment attached to the original crime.” (Gilman, Doc. No.

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154–1 at 13 (Fourth Amended/Supplemental Complaint), Doc. No. 183 (Mar. 4, 2009 Order

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granting plaintiffs’ motion for leave to file a Fourth Amended/Supplemental Complaint.)) With

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respect to this Ex Post Facto claim, the class in Gilman is comprised of “all California state

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prisoners who have been sentenced to a life term with possibility of parole for an offense that

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occurred before November 4, 2008.” (Gilman, Doc. No. 340 (Apr. 25, 2011 Order amending

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definition of class.)) The Gilman plaintiffs seek declaratory and injunctive relief, including a

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permanent injunction enjoining the Board from enforcing the amendments to § 3041.5(b)

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enacted by Marsy’s Law and requiring that the Board conduct a new parole consideration

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hearing for each member of the class. (Gilman, Doc. No. 154–1 (Fourth Amended/Supplemental

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Complaint) at 14.)

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In a class action for injunctive relief certified under Rule 23(b)(2) of the Federal Rules of

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Civil Procedure a court may, but is not required to, permit members to opt-out of the suit.

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Crawford v. Honig, 37 F.3d 485, 487 n.2 (9th Cir. 1994). In certifying the Gilman class, the

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district court found that the plaintiffs satisfied the requirement of Rules 23(a) and 23(b)(2) that

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“the party opposing the class has acted or refused to act on grounds that apply generally to the

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class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting

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the class as a whole.” (See Gilman, Doc. No. 182 (Mar. 4, 2009 Order certifying class pursuant

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to Fed. R. Civ. P. 23(b)(2), Doc. No. 257 (June 3, 2010 Ninth Circuit Court of Appeals

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Memorandum affirming district court’s order certifying class.)) According to the district court in

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Gilman, the members of the class “may not maintain a separate, individual suit for equitable

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relief involving the same subject matter of the class action.” (Gilman, Doc. No. 296 (Dec. 10,

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2010 Order) at 2; see also Doc. No. 278 (Oct. 1, 2010 Order), Doc. No. 276 (Sept. 28, 2010

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Order), Doc. No. 274 (Sept. 23, 2010 Order.))

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Petitioner alleges he is a California state prisoner who was sentenced to a life term in

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prison with the possibility of parole for an offense that occurred before November 4, 2008. Pet.

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at 1. Accepting petitioner’s allegations as true, he is a member of the Gilman class. Similar to

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the plaintiffs in Gilman, petitioner in this habeas action alleges that Marsy’s Law violates the Ex

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Post Facto Clause because, when applied retroactively, it creates a risk of increasing the length

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of his punishment. Petitioner asks the court to issue a writ of habeas corpus. However, even if

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the court found that the Board’s 2010 three-year deferral of petitioner’s next parole suitability

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hearing violated the Ex Post Facto Clause, it would not entitle petitioner to release on parole.

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Because his Ex Post Facto claim concerns only the timing of petitioner’s next parole suitability

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hearing, success on that claim would not necessarily result in determinations that petitioner is

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suitable for release from custody on parole. Rather, petitioner’s equitable relief would be limited

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to an order directing the Board to conduct a new parole suitability hearing and enjoining the

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Board from enforcing against petitioner any provisions of Marsy’s Law found to be

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unconstitutional. This is the same relief petitioner would be entitled to as a member of the

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pending Gilman class action. (See Gilman, Doc. No. 154–1 (Fourth Amended/Supplemental

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Complaint) at 14.)

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Therefore, it appears clear that petitioner’s rights will be fully protected by his

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participation as a class member in the Gilman case. Accordingly, petitioner’s Ex Post Facto

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claim presented by him in this federal habeas action will be dismissed without prejudice to any

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relief that may be available to him as a member of the Gilman class. See Crawford v. Bell, 599

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F.2d 890, 892 (9th Cir. 1979) (“A court may choose not to exercise its jurisdiction when another

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court having jurisdiction over the same matter has entertained it and can achieve the same

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result.”); see also McNeil v. Guthrie, 945 F.2d 1163, 1165 (10th Cir. 1991) (“Individual suits for
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injunctive and equitable relief from alleged unconstitutional prison conditions cannot be brought

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where there is an existing class action.”); Gillespie v. Crawford, 858 F.2d 1101, 1103 (5th Cir.

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1988) (“To allow individual suits would interfere with the orderly administration of the class

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action and risk inconsistent adjudications.”); Johnson v. Parole Board, No. CV 12–3756–GHK

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(CW), 2012 WL 3104867, at *2 (C.D. Cal. June 26, 2012) (recommending dismissal of

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petitioner’s Ex Post Facto challenge to Proposition 9 “without prejudice in light of the ongoing

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Gilman class action.”) (and cases cited therein), report and recommendation adopted by 2012

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WL 3104863 (C.D. Cal. July 25, 2012).

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II.

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Due Process Claim
Petitioner further alleges that the Board’s decision that petitioner was unsuitable for

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parole was unconstitutional because it was based on petitioner’s failure to discuss the

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commitment offense and to secure a place to reside upon release. Pet. 15-16. Petitioner believes

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that these reasons were not legitimate reasons for denying parole. Essentially, petitioner is

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arguing that the Board’s decision was not supported by some evidence of his current

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dangerousness. Under California law, a prisoner is entitled to release unless there is “some

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evidence” of his or her current dangerousness. In re Lawrence, 44 Cal. 4th 1181, 1205-06, 1210

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(2008); In re Rosenkrantz, 29 Cal. 4th 696, 651-53 (2002). According to the United States

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Supreme Court, however, federal habeas review of a parole denial is limited to the narrow

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question of whether a petitioner has received “fair procedures.” Swarthout v. Cooke, ___ U.S.

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___, 131 S.Ct. 859, 862 (2011). In other words, a federal court may only review whether a

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petitioner has received a meaningful opportunity to be heard and a statement of reasons why

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parole was denied. Id. at 862-63 (federal due process satisfied where petitioners were “allowed

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to speak at their parole hearings and to contest the evidence against them, were afforded access

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to their records in advance, and were notified as to the reasons why parole was denied”). Thus,

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this court may not review whether the Board correctly applied California’s “some evidence”

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standard. Id. at 862.
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Petitioner does not allege that he was not afforded constitutionally adequate process as

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defined in Swarthout--that is, that he was denied a meaningful opportunity to be heard or a

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statement of reasons why the Board denied him parole. Rather, it appears from the petition that

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petitioner was given the opportunity to be heard at his 2010 parole suitability hearing and

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received a statement of the reasons why parole was denied. See Pet. 168-174 (noting both

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petitioner’s participation in the hearing and the Board’s reasons for denying parole). This is all

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that due process requires. Swarthout, 131 S.Ct. at 862-63. Petitioner’s contention that the

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reasons provided were insufficient to satisfy California’s “some evidence” does not provide a

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basis for relief. Accordingly, petitioner is not entitled to relief on this claim.

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III.

Conclusion

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Based on the foregoing, the court concludes that the petition should be summarily

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dismissed for failure to state a cognizable claim. There is no basis for concluding that a tenable

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claim for relief could be pleaded if leave to amend were granted. See Jarvis v. Nelson, 440 F.2d

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13, 14 (9th Cir. 1971) (petition for habeas corpus should not be dismissed without leave to

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amend unless it appears that no tenable claim for relief can be pleaded were such leave granted).

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Accordingly, it is hereby ORDERED that:

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1. Petitioner’s request for leave to proceed in forma pauperis is granted;

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2. Petitioner’s application for a writ of habeas corpus is dismissed;

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3. The Clerk is directed to close the case; and

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4. The Court declines to issue a certificate of appealability.

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DATED: May 13, 2013.

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