Jeffrey J. Biggs v. Secretary of the California Department of Corrections and Rehabilitation

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEFFREY J. BIGGS,
Petitioner-Appellant,
v.
SECRETARY OF THE
CALIFORNIA DEPARTMENT
OF CORRECTIONS AND
REHABILITATION,
Respondent-Appellee.
No. 11-18021
D.C. No.
2:07-cv-00470-WBS-CKD
ORDER AMENDING
OPINION AND
DENYING PETITION
FOR PANEL
REHEARING AND
PETITION FOR
REHEARING EN BANC
Filed September 4, 2013
Before: J. Clifford Wallace, Jerome Farris,
and Jay S. Bybee, Circuit Judges.
ORDER
The opinion, filed May 29, 2013, appearing at 717 F.3d
678 (9th Cir. 2013), is amended as follows:
1. At 717 F.3d at 689, lines 47–50, replace, “To the
extent the Garner opinion includes language that can be
interpreted as being relevant to the scope of applicability of

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BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB. 2
the as-applied requirement, that language suggests a limited
scope.” with, “Garner’s language regarding the as-applied
requirement is limited in scope.”
2. At 717 F.3d at 691, lines 61–62, replace “we only
considered that test facially.” with, “we did not have to reach
the as-applied challenge because we found the law facially
invalid.”
3. At 717 F.3d at 692, lines 3–5, replace “if such a
holding existed, could be—and should be—distinguished
with regard to the change in law at issue here.” with,
“can—and should—be distinguished with regard to the
change in law at issue here.”
4. At 717 F.3d at 692, lines 8–9, replace “in Biggs’ case
or otherwise.” with, “in Biggs’ case.”
5. 717 F.3d at 692, lines 61–64, replace “Thus, because
none of our cases discussing Garner hold that as-applied
analysis is required by clearly established federal law, we
have no reason not to follow Johnson.” with, “Thus, because
none of our cases discussing Garner holds that clearly
established federal law requires as-applied analysis, we have
no reason not to follow Johnson.”
With these amendments, the panel judges have voted to
deny appellant’s petition for panel rehearing. Judge Bybee
voted to deny the petition for rehearing en banc, and Judges
Wallace and Farris recommended denying the petition for
rehearing en banc.

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BIGGS V. SEC’Y OF CAL. DEP’T OF CORR. & REHAB. 3
The full court has been advised of the petition for
rehearing en banc and no judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
Appellant’s petition for rehearing and petition for
rehearing en banc, filed July 12, 2013, is DENIED. The
panel will not entertain future petitions for rehearing.

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