(HC) Vera v. Reed ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 G. MEMO VERA, Case No. 1:23-cv-01057-SKO (HC) 12 Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF 13 v. HABEAS CORPUS 14 MELINDA REED, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 15 Respondent. [TWENTY-ONE DAY OBJECTION 16 DEADLINE] 17 18 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254. After conducting a preliminary review of the petition, the Court 20 finds it fails to state a cognizable claim; and to the extent it challenges his conviction, it is 21 successive. The Court will recommend it be DISMISSED. 22 DISCUSSION 23 I. Preliminary Review of Petition 24 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary 25 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it 26 plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the 27 Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1 appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 2 440 F.2d 13, 14 (9th Cir. 1971). 3 II. Failure to State a Claim 4 A habeas corpus petition is the correct method for a prisoner to challenge the “legality or 5 duration” of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser 6 v. Rodriguez, 411 U.S. 475, 485 (1973)). In contrast, a civil rights action pursuant to 42 U.S.C. 7 § 1983 is the proper method for a prisoner to challenge the conditions of confinement. 8 McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499. Petitioner 9 complains that correctional officers have wrongfully seized his legal property. Petitioner is 10 challenging conditions of his confinement. Such claims are not cognizable in a federal habeas 11 action and must be dismissed. Petitioner must seek relief for his complaints by way of a civil 12 rights action. 13 In Nettles v. Grounds, 830 F.3d 922, 936 (9th Cir. 2016), the Ninth Circuit held that a 14 district court has the discretion to construe a habeas petition as a civil rights action under § 1983. 15 However, recharacterization is appropriate only if it is “amenable to conversion on its face, 16 meaning that it names the correct defendants and seeks the correct relief,” and only after the 17 petitioner is warned of the consequences of conversion and is provided an opportunity to 18 withdraw or amend the petition. Id. Here, the Court does not find recharacterization to be 19 appropriate. Petitioner does not name the proper defendants and the claims are not amenable to 20 conversion on their face. Accordingly, the Court should not exercise its discretion to 21 recharacterize the action. 22 Therefore, the Court will recommend that the action be dismissed and the Clerk of Court be 23 directed to send Petitioner a blank civil rights complaint. 24 III. Successive Petition 25 A federal court must dismiss a second or successive petition that raises the same grounds 26 as a prior petition. 28 U.S.C. § 2244(b)(1). The court must also dismiss a second or successive 27 petition raising a new ground unless the petitioner can show that 1) the claim rests on a new, 1 discoverable through due diligence, and these new facts establish by clear and convincing 2 evidence that but for the constitutional error, no reasonable factfinder would have found the 3 applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B). However, it is not the 4 district court that decides whether a second or successive petition meets these requirements. 5 Section 2244 (b)(3)(A) provides: "Before a second or successive application permitted by 6 this section is filed in the district court, the applicant shall move in the appropriate court of 7 appeals for an order authorizing the district court to consider the application." In other words, 8 Petitioner must obtain leave from the Ninth Circuit before he can file a second or successive 9 petition in district court. See Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must 10 dismiss any second or successive petition unless the Court of Appeals has given Petitioner leave 11 to file the petition because a district court lacks subject-matter jurisdiction over a second or 12 successive petition. Burton v. Stewart, 549 U.S. 147, 152 (2007); Cooper v. Calderon, 274 F.3d 13 1270, 1274 (9th Cir. 2001). 14 To the extent Petitioner seeks to challenge his 1997 conviction, his petition is successive. 15 Petitioner previously sought federal habeas relief in this Court with respect to his 1997 16 conviction in Vera v. Ryan, Case No. 1:04-cv-06349-OWW-TAG. The petition was dismissed 17 as untimely. A “dismissal of a first habeas petition for untimeliness presents a ‘permanent and 18 incurable’ bar to federal review of the underlying claims,” and thus renders subsequent petitions 19 “second or successive”. McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009). Thus, the instant 20 petition is “second or successive” under 28 U.S.C. § 2244(b). Petitioner makes no showing that 21 he has obtained prior leave from the Ninth Circuit to file his successive petition. Therefore, this 22 Court has no jurisdiction to consider any renewed application for relief under 28 U.S.C. § 2254 23 and must dismiss the petition. See Burton, 549 U.S. at 157. 24 ORDER 25 Accordingly, the Clerk of Court is DIRECTED to assign a District Judge to this case. 26 RECOMMENDATION 27 For the foregoing reasons, the Court HEREBY RECOMMENDS that the petition be 1 rights action. 2 This Findings and Recommendation is submitted to the United States District Court 3 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and 4 Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of 5 California. Within twenty-one (21) days after being served with a copy, Petitioner may file 6 written objections with the Court. Such a document should be captioned “Objections to 7 Magistrate Judge’s Findings and Recommendation.” The Court will then review the Magistrate 8 Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file 9 objections within the specified time may waive the right to appeal the District Court’s order. 10 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 IT IS SO ORDERED. 12 13 Dated: July 20, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27