Barger v. CDCR et al

Filing 6

ORDER DIRECTING Clerk's Office to Assign a District Judge to This Matter; FINDINGS and RECOMMENDATION to Dismiss Petition for Writ of Habeas Corpus, signed by Magistrate Judge Michael J. Seng on 8/18/17. Objections to F&R Due Within Thirty Days. This case has been assigned to District Judge Dale A. Drozd and Magistrate Judge Michael J. Seng. The new case number is 1:17-cv-01066-DAD-MJS. (Marrujo, C)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10

GARY DALE BARGER1,
Petitioner,

11
v.

12
13

CDCR, et al.,
Respondents.

14

Case No. 1:17-cv-01066-MJS (HC)
ORDER DIRECTING CLERK’S OFFICE TO
ASSIGN A DISTRICT JUDGE TO THIS
MATTER
FINDINGS AND RECOMMENDATION TO
DISMISS PETITION FOR WRIT OF HABEAS
CORPUS

15
(ECF No. 1)
16
THIRTY (30) DAY OBJECTION DEADLINE

17
18
19
20

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas

21

corpus brought pursuant to 28 U.S.C. § 2254. He claims that he has been denied Priority

22

Legal User status at the prison law library and therefore has been unable to timely

23

access library services. This has affected his right of access to the courts. “Since there is

24

room” on the habeas petition to add additional grounds for relief, Petitioner also

25

challenges his conviction in Case No. BF134705A, in the Superior Court of California,

26

County of Kern.

27
28

1

Also known as Gary Francis Fisher and Sonny Barger II.

1
2
3

I.

Successive Habeas Petition
Petitioner’s challenge to Case No. BF134705A is successive and should be

dismissed.

4

A court must dismiss a second or successive petition that raises the same

5

grounds as a prior petition. 28 U.S.C. § 2244(b)(1). A court must also dismiss a second

6

or successive petition raising a new ground unless the petitioner can show that 1) the

7

claim rests on a new constitutional right, made retroactive by the United States Supreme

8

Court or 2) the factual basis of the claim was not previously discoverable through due

9

diligence, and these new facts establish by clear and convincing evidence that but for

10

the constitutional error, no reasonable factfinder would have found the applicant guilty of

11

the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B). However, it is not the district court

12

that decides whether a second or successive petition meets these requirements; the

13

Petitioner must first file a motion with the appropriate court of appeals to be authorized to

14

file a second or successive petition with the district court.

15

Section 2244 (b)(3)(A) provides: “Before a second or successive application

16

permitted by this section is filed in the district court, the applicant shall move in the

17

appropriate court of appeals for an order authorizing the district court to consider the

18

application.” In other words, Petitioner must obtain leave from the Ninth Circuit before he

19

can file a second or successive petition in the district court. See Felker v. Turpin, 518

20

U.S. 651, 656-657 (1996). This Court must dismiss any second or successive petition

21

unless the Court of Appeals has given Petitioner leave to file the petition because a

22

district court lacks subject matter jurisdiction over a second or successive petition.

23

Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997).

24

Because the current petition was filed after April 24, 1996, the provisions of the

25

Antiterrorism and Effective Death Penalty Act of 1996 apply to Petitioner's current

26

petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997). A review of the Court’s dockets and

27

files shows Petitioner previously sought habeas relief with respect to this conviction.

28
2

1

Barger v. Rackley, Case No. 1:14-cv-00946-LJO-MJS (HC). On November 26, 2014, his

2

petition was dismissed as untimely.2 See Barger v. Rackley, No. 1:14-cv-00946-LJO-

3

MJS, 2014 WL 4976084 (E.D. Cal. Sept. 29, 2014). Subsequent attacks on this

4

conviction have been dismissed as successive. Fisher v. Sacramento County Superior

5

Courts, No. 1:17-cv-00650-LJO-MJS (E.D. Cal. June 22, 2017). Petitioner makes no

6

showing that he has obtained prior leave from the Ninth Circuit to file his successive

7

petition attacking the conviction. That being so, this Court has no jurisdiction to consider

8

Petitioner's renewed application for relief under Section 2254 and must dismiss the

9

petition. See Greenawalt, 105 F.3d at 1277. If Petitioner desires to proceed in bringing

10

this petition for writ of habeas corpus, he must file for leave to do so with the Ninth

11

Circuit. See 28 U.S.C. § 2244(b)(3).

12

II.

Non-Cognizable Claims

13

Petitioner’s claims regarding law library access and access to the courts may not

14

be brought in a habeas petition and should be dismissed, without prejudice to Plaintiff

15

bringing these claims in a civil rights action pursuant to 42 U.S.C. § 1983.

16

A federal court may only grant a petition for writ of habeas corpus if the federal

17

petitioner can demonstrate that he "is in custody in violation of the Constitution or laws or

18

treaties of the United States." 28 U.S.C. § 2241(a), (c)(3). A habeas corpus petition is

19

the correct method for a prisoner to challenge “the very fact or duration of his

20

confinement,” and where “the relief he seeks is a determination that he is entitled to

21

immediate release or a speedier release from that imprisonment.” Preiser v. Rodriguez,

22

411 U.S. 475, 489 (1973). In contrast, a civil rights action pursuant to 42 U.S.C. § 1983

23

is the proper method for a prisoner to challenge the conditions of that confinement.

24

McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499. In other

25

words, if a successful conditions of confinement challenge would not necessarily shorten

26
27
28

2

Dismissal of a habeas petition for failure to comply with the AEDPA statute of limitations renders
subsequent petitions challenging the same conviction successive. McNabb v. Yates, 576 F.3d 1028, 1030
(9th Cir. 2009).

3

1

the prisoner’s sentence, then § 1983 is the appropriate vehicle. See Wilkinson v. Dotson,

2

544 U.S. 74 (2005).

3

Petitioner’s law library claims do not implicate the fact or duration of his

4

confinement. They are not cognizable grounds for federal habeas corpus relief and must

5

be dismissed. Should Petitioner wish to pursue his claims, he must do so by way of a

6

civil rights complaint. The Court expresses no opinion as to the merits of such a civil

7

rights complaint. As it does not appear possible that the deficiencies identified herein

8

can be cured by amending the complaint, Petitioner is not entitled to leave to amend

9

prior to dismissal of the entire action. See Lopez v. Smith, 203 F.3d 1122, 1126, 1131

10

(9th Cir. 2000) (en banc).

11

In an appropriate case a habeas petition may be construed as a Section 1983

12

complaint. Wilwording v. Swenson, 404 U.S. 249, 251, 92 S. Ct. 407, 30 L. Ed. 2d 418

13

(1971). Although the Court may construe a habeas petition as a civil rights action, it is

14

not required to do so. Since the time when the Wilwording case was decided there have

15

been significant changes in the law. For instance, the filing fee for a habeas petition is

16

five dollars, and if leave to proceed in forma pauperis is granted, the fee is forgiven. For

17

civil rights cases, however, the fee is now $400 and under the Prisoner Litigation Reform

18

Act the prisoner is required to pay it, even if granted in forma pauperis status, by way of

19

deductions from income to the prisoner's trust account. See 28 U.S.C. 1915(b)(1). A

20

prisoner who might be willing to file a habeas petition for which he or she would not have

21

to pay a filing fee might feel otherwise about a civil rights complaint for which the $350

22

fee would be deducted from income to his or her prisoner account. Also, a civil rights

23

complaint which is dismissed as malicious, frivolous, or for failure to state a claim would

24

count as a "strike" under 28 U.S.C. § 1915(g), which is not true for habeas cases.

25

In view of these potential pitfalls for Petitioner if the petition were construed as a

26

civil rights complaint, the Court will recommend the case be dismissed without prejudice

27

to Petitioner presenting the claims in a civil rights complaint pursuant to 42 U.S.C.

28
4

1

§ 1983, rather than a habeas petition, which will be assigned a separate civil number.

2

The Clerk of Court shall send Petitioner a blank civil rights complaint form along with a

3

copy of this Order.

4

III.

5
6

Conclusion and Recommendation
Based on the foregoing, it is HEREBY RECOMMENDED that the petition for writ

of habeas corpus be DISMISSED.

7

The findings and recommendation are submitted to the assigned United States

8

District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and

9

Rule 304 of the Local Rules of Practice for the United States District Court, Eastern

10

District of California. Within thirty (30) days after being served with a copy, the parties

11

may file written objections with the Court. Such a document should be captioned

12

“Objections to Magistrate Judge’s Findings and Recommendation.” Any reply to the

13

objections shall be served and filed within fourteen (14) days after service of the

14

objections. The parties are advised that failure to file objections within the specified time

15

may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839

16

(9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

17
18
19

IT IS SO ORDERED.
Dated:

August 18, 2017

/s/

20

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

21
22
23
24
25
26
27
28
5