Isaiah Joel Petillo v. Frank Bolan et al

Filing 18

ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge Cormac J. Carney for Report and Recommendation (Issued), 9 . The Court accepts the findings and recommendations of the Magistrate Judge. IT IS THEREFORE ORDERED that judgment be entered dismissing this action without prejudice. (See Order for details) (bem)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ISAIAH JOEL PETILLO,

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Plaintiff,
v.
FRANK BOLAN et al.,

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Defendants.

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Case No. CV 16-2513-CJC (JPR)
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF U.S.
MAGISTRATE JUDGE

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The Court has reviewed the Complaint, records on file, and

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Report and Recommendation of U.S. Magistrate Judge.

See 28

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U.S.C. § 636.

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the R. & R., in which he argues, at length, that his Complaint is

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not barred by Heck v. Humphrey, 512 U.S. 477 (1994), as the

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Magistrate Judge concluded.

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It makes no difference if, for example, the warrant he alleges

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was forged bore the purported signature of a judge other than the

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one who presided over his trial (see Objs. at 15-16) because the

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DNA and other evidence collected from it were nonetheless used to

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convict him.

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filled with allegations concerning the alleged falsity of the

On August 22, 2016, Plaintiff filed objections to

But saying that does not make it so.

Both the Complaint and Plaintiff’s objections are

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evidence used to convict him of murder.1

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convincing when he states that he “by no means” intends the

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Complaint to imply the invalidity of his conviction or sentence.

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(Id. at 18-19.)

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in this lawsuit “in the future . . . may be helpful” in getting

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his convictions “invalidated.”

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the order wrong: he must first get his convictions invalidated

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and then he may bring the challenges outlined in the Complaint.

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Thus, Plaintiff is not

Indeed, he later acknowledges that his success

(Id. at 19.)

But Plaintiff has

The Court accepts the findings and recommendations of the

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Magistrate Judge.

IT IS THEREFORE ORDERED that judgment be

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entered dismissing this action without prejudice.2

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DATED: January 5, 2017
CORMAC J. CARNEY
U.S. DISTRICT JUDGE

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Plaintiff alleges in his objections that Defendants were
motivated by racial animus in investigating and prosecuting him
and that Heck does not apply because he does not directly
challenge the evidence Defendants collected but rather their
unconstitutional reasons for targeting him. (See Objs. at 17,
19.) But no allegations of racial animus appear anywhere in the
Complaint. Moreover, the Complaint and the objections repeatedly
challenge the evidence used to convict him as forged, fabricated,
or falsified. Thus, Heck bars his lawsuit. See Langston v.
Enkojii, No. CIV S-10-2715 GGH P, 2010 WL 5481789, at *2 (E.D.
Cal. Jan. 3, 2010) (Heck likely barred lawsuit by prisoner who
claimed police initially arrested him based on racial profiling
and then falsified evidence during prosecution).
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Plaintiff may refile this lawsuit only if he subsequently
succeeds in getting his convictions overturned, however. See
Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995)
(dismissal under Heck is “required to be without prejudice so
that [plaintiff] may reassert his claims if he ever succeeds in
invalidating his conviction”).
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