(PC) Kishor v. State of CA ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHANDRA KISHOR, No. 2:00-cv-1293 JAM DB P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 STATE OF CALIFORNIA, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se. On December 10, 2020, he filed a 18 document entitled “Motion Renewing and Reopen with New Laws Evidence and Witness.” 19 Plaintiff filed this action on June 12, 2000. On September 11, 2000, the previously-assigned 20 magistrate judge found that plaintiff’s claims challenged the legality of his custody, rather than 21 the conditions of his confinement. Plaintiff was then given the opportunity to file a habeas corpus 22 petition in this action. When he did not do so, the case was dismissed without prejudice on 23 December 19, 2000. 24 In this attempt to re-open his case, plaintiff is again raising challenges to his 1999 trial and 25 subsequent conviction. As plaintiff was informed previously, these sort of challenges must be 26 made in a petition for a writ of habeas corpus, not in a civil rights action under 42 U.S.C. § 1983. 27 See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). 28 //// 1 This court notes that petitioner did file a habeas petition in this court in June 2003 2 | challenging the 2000 conviction. It was denied on the merits in 2007. See Kishor v. Attorney 3 | General of CA, No. 03-cv-1219 LKK CMK P, 2007 WL 2904237 (E.D. Cal. Oct. 3, 2007), rep. 4 | andreco. adopted, 2007 WL 4149327 (E.D. Cal. Nov. 19, 2007). Further, court records show that 5 | plaintiff filed at least five subsequent challenges to his conviction. See Case No. 2:06-cv-1592 6 | GEB KJM; Case No. 2:08-cv-2028 FCD JFM; Case No. 2:10-cv-3171 LKK KJN; Case No. 2:11- 7 || cv-2148 EFB; Case No. 2:19-cv-1556 TLN DB. Each case was dismissed for plaintiffs failure to 8 | demonstrate that he obtained prior authorization from the Ninth Circuit Court of Appeals to file a 9 | second or successive petition. See 28 U.S.C. § 2244(b); Felker v. Turpin, 518 U.S. 651, 656-57 10 | (1996). The same is true in this case. Plaintiff makes no showing that he has obtained 11 | authorization from the Court of Appeals to reopen this case and file a successive petition. 12 Accordingly, IT IS HEREBY RECOMMENDED that plaintiff's motion to reopen this 13 | case (ECF No. 14) be denied. 14 These findings and recommendations will be submitted to the United States District Judge 15 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within thirty days after 16 | being served with these findings and recommendations, any party may file written objections with 17 | the court and serve a copy on all parties. The document should be captioned “Objections to 18 | Magistrate Judge's Findings and Recommendations.” Any response to the objections shall be 19 | filed and served within seven days after service of the objections. The parties are advised that 20 | failure to file objections within the specified time may result in waiver of the right to appeal the 21 | district court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 22 | Dated: December 14, 2020 24 | DLB:9 0s DB/prisoner-civil rights/kish1293.reopen fr ORAH BARNES UNITED STATES MAGISTRATE JUDGE 26 27 28