(HC) Cuellar v. Bergman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TRAVIS JUSTIN CUELLAR, Case No. 1:20-cv-00579-NONE-SKO (HC) 12 Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS PETITION AS DUPLICATIVE 13 v. AND SUCCESSIVE 14 BROOK BERGMAN, Madera County District Attorney, [TEN DAY OBJECTION PERIOD] 15 Respondent. 16 17 18 Petitioner is a state prisoner proceeding pro se. He filed the instant action on April 23, 19 2020, as a civil rights complaint. (Doc. 1.) Petitioner’s allegations relate entirely to his conviction 20 in a state court criminal case, including the prosecutor’s alleged facilitating of “eavesdropping by 21 sending a prosecuting agent to eav[e]sdrop on a private attorney-client meeting in an in custody 22 holding area in the Madera Superior Courthouse.” (Id. at 5.) Petitioner alleges that this 23 eavesdropping resulted in Respondent “obtain[ing] incriminating information, resulting in a 24 conviction of Petitioner.” (Id.) Further, Petitioner requests that the Court “consider the plaintiff’s 25 sentence time served based on the constitutional violations suffered” and “reverse conviction 26 and/or dismiss charges.” (Id.) Because Petitioner’s claims sound in habeas, the complaint was 27 redesignated as a habeas action on April 29, 2020. (Doc. 3.) 1 Petitioner filed a prior habeas action challenging the same conviction and raising the same 2 complaints in Cuellar v. People of the State of California, Case No. 20-cv-00427-AWI-SKO. In 3 that action, the Court has recommended the petition be dismissed without prejudice for failure to 4 exhaust state remedies (Doc. 4.) Because the instant petition is duplicative and successive of the 5 prior petition, this action must be dismissed. See 28 U.S.C. § 2244(b)(1). 6 RECOMMENDATION 7 The Court HEREBY RECOMMENDS that the petition be dismissed as duplicative and 8 successive. 9 This Findings and Recommendation is submitted to the United States District Court 10 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and 11 Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of 12 California. Within ten days after being served with a copy, Petitioner may file written objections 13 with the Court. Such a document should be captioned “Objections to Magistrate Judge’s 14 Findings and Recommendation.” The Court will then review the Magistrate Judge’s ruling 15 pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections within 16 the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 17 F.2d 1153 (9th Cir. 1991). 18 IT IS SO ORDERED. 19 Sheila K. Oberto 20 Dated: May 4, 2020 /s/ . UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27