Bassett v. People of the State of California et al

Filing 47

ORDER signed by Magistrate Judge Allison Claire on 1/7/13 ORDERING that the documents at ECF Nos. 45 and 46 are deemed properly served upon respondent; Petitioners request for an order requiring provision of service copies (ECF No. 45 ) is d enied as moot; Petitioners request for an extension of time to file a traverse (ECF No. 46 ) is granted; Petitioners motion for an emergency court order directing High Desert State Prison to provide petitioner with access to his property and to the law library is denied (ECF No. 46 ); however, Respondent warden or his designee is directed to file a response within fourteen days regarding petitioners access to the law library and his relevant legal property; Upon receipt of respondents response to this order as set forth above, the length of the time extension for filing a traverse will be provided.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD DEWAYNE BASSETT,

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No. 2:11-cv-1592 TLN AC P

Petitioner,
v.

ORDER

MIKE McDONALD, Warden, et al.,
Respondent.

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Petitioner, a state prisoner proceeding pro se, filed an application pursuant to 28 U.S.C. §

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2254. Respondent filed an amended answer on November 14, 2013. Thereafter, petitioner filed a

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document asking this court to issue a letter to C. Davis, LTA, directing him to copy a motion that

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petitioner wishes to serve upon the Attorney General. ECF No. 45. Petitioner includes a

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counseling chrono he received from High Desert State Prison Facility B Law Librarian Davis on

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October 13, 2013, stating that when she informed petitioner that he did not need to serve a

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document filed in this court upon the Attorney General, petitioner argued, threatened to file a 602,

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and was removed from the law library by several correctional officers. Id. at 3. LTA Davis

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documented the incident as a violation of Cal. Code Regs. Title 15 § 3004 (prohibiting the open

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display of disrespect for others). Id. at 3.

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Local Rule 135(b) provides that pro se inmate litigants must conventionally serve

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documents and may not rely on the notice of electronic filing that follows docketing of papers by
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the court. In this case, however, the chrono reflects that the institution’s litigation coordinator

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had confirmed with LTA Davis that conventional service was not necessary. LTA Davis refused

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to provide the requested copies because of the litigation coordinator’s position. It is unclear to the

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court whether the litigation coordinator has authority to waive conventional service on behalf of

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the warden. In the interest of judicial economy, the court will deem ECF Nos. 45 and 46 properly

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served. The request at ECF No. 45 will therefore be denied as moot. Respondent is advised for

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future purposes to either formally waive conventional service or ensure access to copying of

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documents necessary for such service.

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Petitioner has subsequently requested an extension of time to file a traverse and an

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“emergency order” granting both law library access and access to his legal property in order to

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prepare his traverse. ECF No. 46. This court lacks jurisdiction, within the context of a habeas

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corpus proceeding, to grant the relief sought by petitioner. Federal courts are courts of limited

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jurisdiction. “[T]he judicial power of federal courts is constitutionally restricted to ‘cases' and

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‘controversies.’ ” Flast v. Cohen, 392 U.S. 83, 94 (1968). “The absence of either denies a federal

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court the power to hear a matter otherwise before it.” Rivera v. Freeman, 469 F.2d 1159, 1162-

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1163 (9th Cir. 1972).

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Petitioner, presently confined at High Desert State Prison, is proceeding on a petition

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challenging his conviction following a no contest plea to second degree robbery, forcible rape and

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kidnapping. Petitioner, who admitted to the use of a firearm, was sentenced in 2009 to a term of

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forty years and four months. Petition, ECF No. 1. Petitioner raises the following grounds: 1)

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preliminary hearing issues; 2) plea bargain issue; and 3) ineffective assistance of counsel. Id.

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The court’s jurisdiction in this matter, and thus its power to grant relief, is limited and

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circumscribed by the issues presented in the petition.1 The right to law library access or to access

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to his legal property is not a claim at issue, and in any case a claim of a denial of a right of access

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to the court’s would have to proceed by way of an action under 42 U.S.C. § 1983 and meet the

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Moreover, the United States Supreme Court has held that denial of law library access does not
provide the basis for federal habeas corpus relief because no Supreme Court case clearly
establishes a pro se petitioner’s constitutional right to law library access. Kane v. Garcia Espitia,
546 U.S. 9, 10 (2005); see also Mendoza v. Carey, 449 F.3d 1065, 1070 (9th Cir.2006).
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actual injury requirement. See Lewis v. Casey, 518 U.S. 343, 349-355 (1996); Bounds v. Smith,

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430 U.S. 817 (1977). Therefore, the court cannot issue an “emergency order” of the type

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petitioner seeks.

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Nevertheless, the court will require respondent warden to inform the court, within

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fourteen days, whether petitioner is being denied all access to the prison law library and to his

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legal property. If petitioner’s claims are exaggerated, petitioner will be required to file his

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traverse forthwith, absent which the matter will be deemed submitted. If all law library access

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and access to his relevant legal property is being denied, respondent should provide petitioner

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reasonable access as soon as possible so that this matter may be submitted.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The documents at ECF Nos. 45 and 46 are deemed properly served upon respondent;

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2. Petitioner’s request for an order requiring provision of service copies (ECF No. 45) is

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denied as moot;

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3. Petitioner’s request for an extension of time to file a traverse (ECF No. 46) is granted;

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4. Petitioner’s motion for an emergency court order directing High Desert State Prison to

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provide petitioner with access to his property and to the law library is denied (ECF No. 46);

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however,

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5. Respondent warden or his designee is directed to file a response within fourteen days
regarding petitioner’s access to the law library and his relevant legal property;
6. Upon receipt of respondent’s response to this order as set forth above, the length of the

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time extension for filing a traverse will be provided.

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DATED: January 7, 2013

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