Demetrius Borstad v. J. HARTLEY, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEMETRIUS BORSTAD,
Petitioner-Appellant,
v.
J. HARTLEY, Warden,
Respondent-Appellee.
No. 10-15412
D.C. No. 5:09-cv-03756-JW
ORDER*
Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
TONY EUGENE SAFFOLD, AKA Tony
Eugene fSaffold,
Petitioner-Appellant,
v.
RICK HILL, Warden,
Respondent-Appellee.
No. 11-16355
D.C. No.
1:10-cv-01295-OWW-MJS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
AUG 26 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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RENO FUENTES RIOS,
Petitioner-Appellant,
v.
WARDEN OF CSP-CORCORAN,
Respondent-Appellee.
No. 11-16570
D.C. No. 1:11-cv-00667-GSA
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, Senior District Judge, Presiding
Gary S. Austin, Magistrate Judge, Presiding
ERIC WICKLIFFE,
Petitioner-Appellant,
v.
GARY SWARTHOUT, Warden and
BOARD OF PAROLE HEARINGS,
Respondents-Appellees.
No. 11-17842
D.C. No.
2:11-cv-02172-MCE-GGH
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England Jr., District Judge, Presiding
HUBERT PETRICH,
Petitioner-Appellant,
v.
TERRI GONZALEZ, Warden,
No. 11-55308
D.C. No.
5:10-cv-01661-DSF-E

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Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted August 12, 2013
Submission Vacated April 30, 2015
Resubmitted August 26,2016
San Francisco, California
Before: REINHARDT, NOONAN, and HURWITZ, Circuit Judges.
These cases involve challenges to Proposition 9, The Victims’ Bill of Rights
Act of 2008 (“Marsy’s Law”), see Cal. Const. art. I, § 28; Cal Penal Code
§§ 679.026, 3041.5, 3043, 3044, by California prisoners serving indeterminate life
sentences with the possibility of parole. Argument in each case was heard on August
12, 2013, and submission was vacated in each case on April 30, 2015, pending this
Court’s decision in Gilman v. Brown, No. 14-15613. In the wake of our opinions in
Gilman v. Brown, 814 F.3d 1007 (9th Cir. 2016), and Nettles v. Grounds, No. 12-
16935, 2016 WL 4072465 (9th Cir. 2016) (en banc), we today resubmit these cases
for decision. We have jurisdiction under 28 U.S.C. § 2253, and vacate and remand
for identical reasons in each case.
1. In each of these cases, petitioners sought habeas corpus relief under 28
U.S.C. § 2254, arguing that as applied Marsy’s Law violates the Ex Post Facto

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Clause, U.S. Const. Art. I, §§ 9, 10, by impermissibly advancing the dates for parole
hearings. None of the petitioners’ claims lies at “the core of habeas corpus,” because
petitioners do not challenge the “validity of any confinement or . . . the particulars
affecting its duration,” Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam),
but rather only the timing of each petitioner’s next parole hearing. Success on the
petitioners’ claims would not necessarily result in a shortening of their sentences.
Thus, the district court in each case lacked jurisdiction to grant 28 U.S.C. § 2254
habeas relief. Nettles, 2016 WL 4072465, at *10 (“[A] § 1983 action is the exclusive
vehicle for claims brought by state prisoners that are not within the core of habeas
corpus.”). The judgments below on the merits of petitioners’ constitutional claims
therefore are vacated.
2. On remand, petitioners should be afforded leave to amend their petitions
to assert claims under 42 U.S.C. § 1983. Id. (“[A] district court may construe a
petition for habeas corpus to plead a cause of action under § 1983 after notifying and
obtaining informed consent from the prisoner.”).
3. If any petitioner chooses to amend, the district court should determine in
the first instance the impact of Gilman on his claims.
VACATED AND REMANDED. Each party shall bear their own costs.
In No. 10-15412, Borstad’s “Motion to Submit Uncertified Issues on Appeal
and on the Grounds of Jurisdiction,” Dkt. No. 5, is DENIED.

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In No. 10-15412, Borstad’s “Motion to Submit Intervening United States
Supreme Court Law in Support of Request for Certificate of Appealability,” Dkt.
No. 6, is DENIED.
In No. 10-15412, Borstad’s “Request for Judicial Notice,” Dkt. No. 28, is
GRANTED.
In No. 11-16355, Appellee’s “Request for Judicial Notice,” Dkt. No. 35, is
GRANTED.
In No. 11-16355, Saffold’s “Motion for Judicial Notice,” Dkt. No. 41, is
GRANTED.
In No. 11-16355, Appellee’s “Request for Judicial Notice,” Dkt. No. 58, is
GRANTED.
In No. 11-16355, Saffold’s “Motion for Order Remanding Matter to District
Court” in Saffold v. Hill, No. 11-16355, Dkt. No. 86, is DENIED without prejudice
to renewing the request for consolidation in the district court.
In No. 11-16570, Rios’s “Request for Judicial Notice of Evidentiary Hearing
and Transcript,” Dkt. No. 16, is GRANTED.
In No. 11-16570, Appellee’s “Request for Judicial Notice,” Dkt. No. 44, is
GRANTED.
In No. 11-55308, Appellee’s “Motion to Substitute Party,” Dkt. No. 4, is
GRANTED.

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In No. 11-55308, Petrich’s “Request for Judicial Notice of Transcript,” Dkt.
No. 15, is GRANTED.
In No. 11-55308, Amicus Curiae’s “Notice,” Dkt. No. 47, is DENIED.
In No. 11-55308, Appellee’s “Request for Judicial Notice,” Dkt. No. 49, is
GRANTED.

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