Lynn v. Sacramento Superior Court

Filing 9

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 7/21/15 recommending that 1 Petition for Writ of Habeas Corpus filed by Calvin S. Lynn. Referred to Judge William B. Shubb; Objections to F&R due within 14 days. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CALVIN S. LYNN,

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Petitioner,

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No. 2:14-cv-2601 WBS KJN P

v.

FINDINGS & RECOMMENDATIONS

SACRAMENTO COUNTY SUPERIOR
COURT,
Respondents.

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Petitioner is a state prisoner proceeding without counsel. On November 6, 2014,

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petitioner filed a petition for writ of error coram vobis.1 By order filed February 3, 2015, this

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action was dismissed without prejudice. On June 12, 2016, petitioner requested that the instant

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action be reopened. Petitioner states that “[d]isabilities, retaliation, legal mail tampering, and

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clandestine attacks by correctional officers have all but not totally blocked [his] access to the

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courts.” (ECF No. 8 at 1.) Petitioner claims he enclosed a response to an order issued in Lynn v.

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Grecco, Case No. 2:15-cv-0669 (E.D. Cal.), and claims that on the last page is his “permission to

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proceed in forma pauperis” and contends the “entire response” is relevant to the instant case.

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Petitioner also states that there is another case, No. 2:14-cv-2690 KJN, to which the permission to

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Similar to a writ of error coram nobis, a writ of error coram vobis asks “the same court which
had rendered the judgment to reconsider it.” See People v. Kim, 45 Cal.4th 1078, 1091-92, 90
Cal. Rptr.3d 355, 366 (2009).
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proceed in forma pauperis should be applied. (ECF No. 8 at 1.) However, no documents were

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appended to petitioner’s one page filing, and nothing within petitioner’s filing reflects that he was

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granted leave to proceed in forma pauperis.
The undersigned construes plaintiff’s motion as a motion for relief from judgment

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pursuant to Rule 60(b) of the Federal Rules of Civil Procedure:

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(b) Grounds for Relief from a Final Judgment, Order, or
Proceeding. On motion and just terms, the court may relieve a party
or its legal representative from a final judgment, order, or
proceeding for the following reasons:

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(1) mistake, inadvertence, surprise, or excusable neglect;

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(2) newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial
under Rule 59(b);

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(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;

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(4) the judgment is void;

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(5) the judgment has been satisfied, released or discharged; it is
based on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or

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(6) any other reason that justifies relief.

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Fed. R. Civ. P. 60(b).

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Petitioner has failed to demonstrate that he is entitled to relief from judgment under Rule

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60(b). Moreover, review of the petition reflects that re-opening this case would be futile. First,

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writs of coram vobis have been abolished in federal civil practice. Fed. R. Civ. P. 60(e).

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Second, judicial findings in Grecco, Case No. 2:15-cv-0669 (E.D. Cal.), confirm that

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petitioner had not exhausted his state court remedies at the time he filed the instant petition in

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2014. In the November 6, 2014 petition for writ of error coram vobis, petitioner challenges his

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2010 conviction in the Sacramento County Superior Court, Case No. 09F01642. (ECF No. 1.)

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Petitioner claims that District Attorney Sherri Greco2 colluded with defense attorney Clark Head

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to plant blood evidence, falsify court documents, manipulate photographs, and suppress or

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Although petitioner named District Attorney Sherri “Grecco” as a defendant in No. 2:15-cv0669 WBS GGH, he referred to her as “Greco” in both petitions and subsequent filings.
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conceal crime scene investigation reports. Petitioner appears to seek DNA testing of blood

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allegedly found on his shoe. (ECF No. 1 at 3.)

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However, petitioner subsequently filed a petition for writ of mandate, also challenging the

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2010 conviction, which another court construed as a petition for writ of habeas corpus. Grecco,

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No. 2:15-cv-0669 WBS GGH (E.D. Cal.). In Grecco, petitioner also claimed that Greco colluded

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with Head to conceal C.S.I. reports, plant blood, manipulate photographs, falsify documents, etc.

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Id. (ECF No. 13 at 1.) The other court reviewed petitioner’s state court records and determined

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that “petitioner did not raise any claim concerning misconduct by the prosecutor or defense

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counsel,” or raise an issue concerning DNA in his appeal filed in the Court of Appeal. Id. (ECF

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No. 13 at 1.) Although petitioner appended a motion for DNA testing pursuant to Cal. Penal

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Code § 1405 in superior court case number 09F01642, signed by petitioner on January 29, 2012,

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the court in Grecco found that there was no indication the motion was actually filed in the

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superior court, or that petitioner pursued the DNA claim through the California Supreme Court.

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Grecco, No. 2:15-cv-0669 WBS GGH (ECF No. 13 at 6.) The court in Grecco determined that

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petitioner had failed to exhaust his state court remedies, and ordered petitioner to show cause why

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the petition should not be dismissed without prejudice. Id. (ECF No. 13 at 6.) On July 2, 2015,

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the court noted that despite petitioner filing five separate responses to the order to show cause,

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petitioner failed to state facts showing he had exhausted his state court remedies, and

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recommended that the petition be dismissed without prejudice. Id. (ECF No. 20.)

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The exhaustion of state court remedies is a prerequisite to the granting of a petition for

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writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement

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by providing the highest state court with a full and fair opportunity to consider all claims before

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presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v.

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Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986).

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Here, because the writ of error coram vobis has been abolished, petitioner must challenge

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his state court conviction through a petition for writ of habeas corpus. See 28 U.S.C. § 2254.

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However, petitioner may not file a habeas petition in federal court until he exhausts his state

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judicial remedies. Because it appears petitioner had not exhausted his state court remedies prior

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to filing the instant action, reopening this case would be futile.
Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s motion to reopen this

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case (ECF No. 8), construed as a motion for relief from judgment, be denied.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, petitioner may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections,

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he shall also address whether a certificate of appealability should issue and, if so, why and as to

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which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the

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applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

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§ 2253(c)(3). Petitioner is advised that failure to file objections within the specified time may

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waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991).

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Dated: July 21, 2015

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/lynn2601.60b

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