(PC) Howell v. Schubert ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KAREEM J. HOWELL, No. 2: 19-cv-0266 KJM KJN P 12 Plaintiff, 13 v. ORDER 14 ANN MARIE SCHUBERT, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 19 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On March 16, 2021, the magistrate judge filed amended findings and recommendations 21 herein which were served on all parties and which contained notice that any objections to the 22 findings and recommendations were to be filed within fourteen days. ECF No. 39. Neither party 23 has filed objections to the findings and recommendations. 24 The court has reviewed the file and, except as noted below, finds the findings and 25 recommendations to be supported by the record and by the magistrate judge’s analysis. The court 26 writes separately to note it declines to adopt footnote 3 of the findings and recommendations, 27 ECF No. 39 at 8 n.3. 28 ///// 1 The magistrate judge finds habeas corpus relief “is available” to plaintiff because he was 2 unrepresented by counsel at the time he entered his guilty plea. Id. It is not clear habeas corpus 3 relief remains available to plaintiff on this ground, see Iowa v. Tovar, 541 U.S. 77, 92-93 (2004) 4 (“in a collateral attack on an uncounseled conviction, it is the defendant’s burden to prove that he 5 did not competently and intelligently waive his right to the assistance of counsel”), but the court 6 need not resolve this issue. There is no showing plaintiff’s conviction has been reversed, 7 expunged, or otherwise invalidated, nor is there any showing plaintiff would come within one of 8 the narrow exceptions to the Heck bar announced in Cunningham v. Gates, 312 F.3d 1148, 1153 9 n.3 (9th Cir. 2002) and discussed in Guerrero v. Gates, 442 F.3d 697, 704-05 (9th Cir. 2006). 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. Except as noted in this order, the amended findings and recommendations filed 12 March 16, 2021 are adopted in full; 13 2. Defendants’ motion to dismiss, ECF No. 32, is granted; and 14 3. This case is closed. 15 DATED: September 29, 2021. 16 17 18 19 20 21 22 23 24 25 26 27 28