Taylor v. Wofford

Filing 17

ORDER REOPENING CASE,LIFTING STAY; DISMISSING EX POST FACTO CLAIM; AND DENYING CERTIFICATE OF APPEALABILITY re Granting 15 MOTION Reopen Case, Lift Stay, and Dismiss the Ex Post Facto Claim filed by Rosemary Ndoh, Granting in Par t and Denying in Part 16 MOTION to Reopen Case filed by Mark James Taylor. A Certificate of Appealability will not issue. Signed by Judge Yvonne Gonzalez Rogers on 3/10/2017. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 3/10/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARK JAMES TAYLOR,
Petitioner,

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v.

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ROSEMARY NDOH, Acting Warden,

ORDER REOPENING CASE; LIFTING
STAY; DISMISSING EX POST FACTO
CLAIM; AND DENYING CERTIFICATE
OF APPEALABILITY

Respondents.

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Case No. 15-cv-00996-YGR (PR)

I.

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INTRODUCTION
Before the Court are pending motions from Respondent and Petitioner to reopen the instant

United States District Court
Northern District of California

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matter and lift the stay. Dkts. 15, 16. In their motions, Respondent argues that this Court should

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dismiss the remaining ex post facto claim, while Petitioner argues that this claim must be

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addressed on the merits. See id. For the reasons outlined below, the Court reopens this action,

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lifts the stay, and DISMISSES the remaining ex post facto claim.

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II.

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BACKGROUND
Petitioner filed the instant pro se action for a writ of habeas corpus pursuant to 28 U.S.C.

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§ 2254, challenging the decision of the Board of Parole Hearings (“Board”) to deny him parole at

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his July 26, 2012 parole suitability hearing. Dkt. 1. As grounds for federal habeas relief,

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Petitioner’s first two claims alleged that he was denied due process when the Board (1) required

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him to admit to the commitment offense and (2) denied parole without some evidence that he

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continues to present a current threat to public safety. Id. at 24.1 In his third claim, Petitioner

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alleged that the Board’s deferral of his next parole hearing for seven years under Marsy’s Law

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violates the Ex Post Facto Clause. Id.

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In an Order dated March 17, 2016 Order, the Court granted in part and denied in part
Respondent’s motion to dismiss. Dkt. 14. Respondent had argued that the petition must be

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Page number citations refer to those assigned by the Court’s electronic case management
filing system and not those assigned by Petitioner.

dismissed because: (1) Petitioner’s first two claims of due process violations did not entitle him to

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federal habeas relief; and (2) Petitioner was a member of a pending class action, in which the

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Ninth Circuit Court of Appeals resolved a claim similar to his ex post facto claim. See Dkt. 8 at 2-

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4. Thereafter, Respondent filed a supplemental brief in which Respondent argued that the Court

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should deny Petitioner’s ex post facto claim because the Ninth Circuit resolved the issue of

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extended deferral periods in Respondent’s favor in Gilman v. Brown (Gilman II), 814 F.3d 1007

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(9th Cir. 2016). See Dkt. 12 at 2. In granting in part Respondent’s motion to dismiss, the Court

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determined that Petitioner failed to state federal due process claims when he challenged his 2012

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parole denial. Dkt. 14 at 5-6. However, the Court denied without prejudice Respondent’s request

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to dismiss Petitioner’s ex post facto claim challenging the increase in deferral periods following a

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United States District Court
Northern District of California

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parole denial. Id. at 6-7. The Court concluded that, although the Ninth Circuit had decided the ex

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post facto issue in favor of Respondent, the Gilman II decision was not final. Id. at 7.

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Accordingly, this Court stayed these proceedings until the Ninth Circuit issued the mandate in

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Gilman II. Id. Once the mandate issued, the Court ordered the parties to move to reopen the

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action and lift the stay, and directed Respondent to “file a statement regarding the manner in

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which it intends to proceed.” Id. at 8.

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III.

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DISCUSSION
Respondent and Petitioner now move to reopen and lift the stay because the Ninth Circuit

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issued its mandate, finalizing its Gilman II decision. Dkt. 15-1 at 2. The Court GRANTS the

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parties’ motions to reopen the case and lift the stay. Dkts. 15, 16. Respondent also moves dismiss

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the ex post facto claim because it is precluded by Gilman II. See Yong v. INS, 208 F.3d 1116,

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1119 n.2 (9th Cir. 2000) (“[O]nce a federal circuit court issues a decision, the district courts within

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that circuit are bound to follow it . . . .”).

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The Court agrees that Petitioner’s claim that application of Marsy’s Law to defer his parole

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eligibility hearings violates the Ex Post Facto Clause is foreclosed by Gilman II. In 2008, the

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voters approved Proposition 9, the “Victims’ Bill of Rights of 2008: Marsy’s Law,” which

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modified the availability and frequency of parole hearings. Specifically, Proposition 9 provides

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that the board will hear each case every fifteen years unless it opts to schedule the next hearing in
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three, five, seven or ten years. Cal. Penal Code § 3041.5(b)(3). This means that the minimum

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deferral period was increased from one year to three years, the maximum deferral period was

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increased from five years to fifteen years, and the default deferral period was changed from one

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year to fifteen years. Gilman v. Schwarzenneger (Gilman I), 638 F.3d 1101, 1105 (9th Cir. 2011).

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But Proposition 9 also amended the law governing parole deferral periods by authorizing
the board to advance a hearing date. The board “may exercise its discretion to hold an advance

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hearing sua sponte or at the request of a prisoner.” Id. In order to request that the board hold an

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advance hearing, a prisoner “submits a petition to advance (‘PTA’) setting forth ‘the change in

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circumstances or new information that establishes a reasonable likelihood that consideration of the

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public safety does not require the additional period of incarceration of the inmate.” Gilman II, 814

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United States District Court
Northern District of California

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F.3d 1at 1011 (citing Cal. Penal Code § 3041.5(d)(1)).

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In Gilman I, the Ninth Circuit explained that the plaintiffs could not succeed on the merits

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of their ex post facto challenge to Proposition 9 unless: (1) Proposition 9, on its face, created a

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significant risk of increasing the punishment of California life-term inmates; or (2) the plaintiffs

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could demonstrate, by evidence drawn from Proposition 9’s practical implementation, that its

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retroactive application will result in a longer period of incarceration than under the prior law.

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Gilman I, 638 F.3d at 1107 (citing Garner v. Jones, 529 U.S. 244, 255 (2000)). The Ninth Circuit

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noted that the changes required by Proposition 9 appeared to create a significant risk of prolonging

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the plaintiffs’ incarceration, but concluded that the availability of advance hearings to the board

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precluded relief because such availability sufficiently reduced the risk of increased punishment for

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prisoners under the standard set out in Garner. See id. at 1108-11. More recently and definitively

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in Gilman II, the Ninth Circuit concluded that Proposition 9 does not violate the Ex Post Facto

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Clause because there is no evidence that Proposition 9 increases the risk of prolonged

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incarceration; the PTA process set forth in the California Penal Code, whereby an inmate can

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petition to advance a parole suitability hearing, affords relief from class-wide risk of prolonged

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incarceration. See Gilman II, 814 F.3d at 1016-21. The Ninth Circuit has issued its mandate.

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Dkt. 15-1 at 2. The United States Supreme Court has since denied the petition for a writ of

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certiorari. See Madden v. Brown, No. 16-6598, 2017 WL 69427, *1 (U.S. Jan. 9, 2017).
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Accordingly, Petitioner’s ex post facto claim is foreclosed by Gilman II. As the Court

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found in its March 17, 2016 Order, Petitioner was a member of the Gilman class, and therefore he

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is now precluded under the doctrine of collateral estoppel from re-litigating the same issues of fact

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and law litigated and decided in Gilman II. See Disimone v. Browner, 121 F.3d 1262, 1267 (9th

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Cir. 1997) (under doctrine of collateral estoppel, party precluded from re-litigating issues of fact

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and law previously litigated and decided). Therefore, the Court GRANTS Respondent’s motion to

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dismiss the remaining ex post facto claim. Dkt. 15. Thus, Petitioner’s motion for the Court to

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address his ex post facto claim on the merits is DENIED. Dkt. 16.

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IV.

CERTIFICATE OF APPEALABILITY
A certificate of appealability will not issue. See 28 U.S.C. § 2253(c). This is not a case in

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United States District Court
Northern District of California

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which “reasonable jurists would find the district court’s assessment of the constitutional claims

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debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, a certificate of

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appealability is DENIED.

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V.

CONCLUSION

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For the reasons outlined above, the Court orders as follows:

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1.

Respondent’s “Motion to Reopen Case, Lift Stay, and Dismiss the Ex Post Facto

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Claim” is GRANTED. Dkt. 15. Petitioner’s “Motion to Reopen Case, Lift Stay, and Address the

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Ex Post Facto Claim” is GRANTED in part and DENIED in part. Dkt. 16. Specifically, the

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parties’ motions to reopen the case and lift the stay are GRANTED. Dkts. 15, 16. Respondent’s

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motion to dismiss the remaining ex post facto claim is GRANTED. Dkt. 15. Petitioner’s motion

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for the Court to address his ex post facto claim on the merits is DENIED. Dkt. 16.

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2.

A certificate of appealability will not issue. Petitioner may seek a certificate of

appealability from the Ninth Circuit Court of Appeals.

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3.

The Clerk of the Court shall terminate any pending motions and close the file.

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4.

This Order terminates Docket Nos. 15 and 16.

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IT IS SO ORDERED.

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Dated: March 10, 2017

_______________________________
YVONNE GONZALEZ ROGERS
United States District Judge

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