Clifford B. Hubbard v. United States of America

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLIFFORD B. HUBBARD,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
No. 20-16094
D.C. No.
1:19-mc-00333-LEK-KJM
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Argued and Submitted July 7, 2021
Honolulu, Hawaii
Before: NGUYEN, OWENS, and FRIEDLAND, Circuit Judges.
In 1982, a general court-martial convicted U.S. Army Private Clifford
Hubbard of murder, attempted sodomy, and indecent acts with a child. Hubbard
was sentenced to life in prison and is currently serving his sentence at a state prison
in Florida. In 2019, Hubbard filed a petition for DNA testing under the Innocence
Protection Act of 2004 (“IPA”), 18 U.S.C. § 3600, in federal district court. In a
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
AUG 10 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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concurrently filed opinion, we affirm the dismissal of that petition for lack of
subject-matter jurisdiction.
Hubbard raises an additional argument on appeal—which he did not raise
before the district court—that the IPA violates the Equal Protection Clause by
discriminating against “military prisoners.” Hubbard does not contend that the
statute discriminates against a suspect class; rather, he argues only that the IPA
cannot withstand rational basis review. Applying that standard, we hold that
Hubbard has not met his burden to “negative every conceivable basis which might
support” the IPA—including, for example, giving special deference to military
courts. Dent v. Sessions, 900 F.3d 1075, 1082 (9th Cir. 2018) (quoting Hernandez-
Mancilla v. Holder, 633 F.3d 1182, 1185 (9th Cir. 2011)).
AFFIRMED.

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