Crawford v. Phillips, et. al.
Filing
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ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 11/1/2011 ORDERING the clerk to assign a district judge to this case; and pltf's 3 motion to appoint counsel is DENIED; and RECOMMENDING that pltf's 2 motion to proceed ifp be denied as moot; and this action be dismissed w/out prejudice. Assigned and Referred to Judge William B. Shubb; Objections due w/in 21 days. (Yin, K)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ROBERT JOE CRAWFORD,
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Plaintiff,
No. 2:11-cv-2805 KJN P
vs.
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JOHN D. PHILLIPS, et al.,
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Defendants.
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ORDER AND
FINDINGS AND RECOMMENDATIONS
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Plaintiff, proceeding without counsel, filed a civil rights complaint pursuant to 42
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U.S.C. § 1983. Plaintiff names the district attorney, deputy district attorney, sentencing judge,
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and public defender as defendants, and claims these defendants violated plaintiff’s 1988 and
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1991 plea agreements by sentencing plaintiff in 1996 under California’s Three Strikes Law.
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Plaintiff seeks a court order remanding his criminal case back to state court for re-sentencing or
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holding a new hearing.
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Plaintiff has improperly filed his claim as a civil rights action. Generally,
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challenges to prison conditions are cognizable only through a 42 U.S.C. § 1983 suit, while
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challenges implicating the fact or duration of confinement must be brought through a habeas
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petition pursuant to 28 U.S.C. § 2254. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).
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Here, plaintiff attempts to challenge the sentencing court’s use of plaintiff’s prior
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convictions to enhance his prison sentence. A successful challenge to plaintiff’s conviction
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would necessarily impact the fact or duration of his confinement.
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A civil rights complaint seeking habeas relief should be dismissed without
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prejudice to bringing it as a petition for writ of habeas corpus. Trimble v. City of Santa Rosa, 49
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F.3d 583, 586 (9th Cir. 1995). However, in the instant case, plaintiff previously challenged his
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1996 conviction for second degree burglary under California’s Three Strikes Law. See Crawford
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v. Smalls, 2:98-cv-2105 GEB DAD P (E.D. Cal.) (petition denied on the merits).1 In Crawford v.
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McDonald, 2:09-cv-3187 WBS DAD P, plaintiff again challenged the 1996 conviction, claiming
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the trial court misinterpreted state law in sentencing plaintiff under California’s Three Strikes
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Law, and the district attorney violated two of plaintiff’s previous plea agreements. 2:09-cv-3187
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WBS DAD P, Dkt. 10 at 2. Plaintiff was informed that his 2009 petition was successive, and
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advised that he must first obtain authorization from the Court of Appeals for the Ninth Circuit
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before attempting to challenge his 1996 conviction again. Id. Therefore, it is inappropriate to
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grant plaintiff leave to amend.
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In addition, plaintiff seeks leave to proceed in forma pauperis under 28 U.S.C.
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§ 1915. However, because plaintiff fails to state a civil rights claim, and cannot rectify this by
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amendment, the court recommends denying plaintiff’s motion to proceed in forma pauperis as
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moot.
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Finally, plaintiff seeks appointment of counsel. The United States Supreme Court
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has ruled that district courts lack authority to require counsel to represent indigent prisoners in
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§ 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain
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exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to
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28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.
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Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, the court does not
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A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman,
803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
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find the required exceptional circumstances.
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In accordance with the above, IT IS HEREBY ORDERED that:
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1. The Clerk of the Court is directed to assign a district judge to this case; and
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2. Plaintiff’s October 24, 2011 motion to appoint counsel is denied; and
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IT IS RECOMMENDED that:
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1. Plaintiff’s October 24, 2011 motion to proceed in forma pauperis be denied as
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moot; and
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2. This action be dismissed without prejudice.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-
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one days after being served with these findings and recommendations, plaintiff may file written
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objections with the court. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951
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F.2d 1153 (9th Cir. 1991).
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DATED: November 1, 2011
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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craw2805.56
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