Neal v. Warden of SATF et al.

Filing 75

ORDER signed by Magistrate Judge Deborah Barnes on 6/30/2017 DENYING 45 Motion for Investigation and DENYING 46 Motion for Equal Presentation. (Henshaw, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT W. NEAL, 12 13 14 No. 2:16-cv-2778 JAM DB P Petitioner, v. ORDER WARDEN OF SATF, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a 18 writ of habeas corpus under 28 U.S.C. § 2254. Before the court are petitioner’s motions for an 19 investigation and for “equal access to the courts.” 20 In his motion for an investigation, petitioner appears to seek an order requiring an 21 investigation into violations of his civil rights and into a criminal conspiracy. (ECF No. 45.) 22 Petitioner is essentially asking the court to order a factual investigation into the bases for his 23 petition. Petitioner’s request is premature. When, and if, the merits of petitioner’s claims are 24 considered, the first step will be a determination of whether the state court decisions rejecting 25 petitioner’s claims were unreasonable under 28 U.S.C. § 2254(d). Only after petitioner clears that 26 hurdle may the court consider new evidence which was not presented to the state court. See 27 Cullen v. Pinholster, 563 U.S. 170 (2011). Therefore, petitioner’s motion for an investigation 28 will be denied. 1 1 In his second motion, petitioner complains about the unfairness inherent in proceeding pro 2 se against respondent, who is represented by counsel. Essentially, petitioner is again requesting 3 the appointment of counsel. As the court informed petitioner in its order denying his prior 4 request, the court does not find the appointment of counsel warranted at this time. (See Dec. 7, 5 2016 Order (ECF No. 24).) Petitioner is advised that if at any point in this proceeding the court 6 feels counsel should be appointed, the court will issue an order appointing counsel for petitioner. 7 Finally, petitioner is warned that he must use restraint in filing motions. By the court’s 8 count, petitioner has filed over 25 motions and requests to date. Many of petitioner’s motions 9 seek the same things – factual development of his claims and the appointment of counsel. 10 Petitioner may not continually file motions seeking the same relief without consequences. Under 11 Federal Rule of Civil Procedure 11(b), a prisoner’s claims are considered frivolous if they 12 “merely repeat[] pending or previously litigated claims.” Cato v. United States, 70 F.3d 1103, 13 1105 n. 2 (9th Cir. 1995) (quoting Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988)). 14 Sanctions for violation of Rule 11(b) may include dismissal of petitioner’s case. See Bell v. 15 Harrington, No. 1:12-cv-0349-LJO-GBC (PC), 2012 WL 893815, *9 (E.D. Cal. Mar. 15, 2012). 16 Petitioner should carefully consider whether any motion he intends to file is inappropriate 17 because he has already filed the same, or a very similar, motion, or because the relief he is 18 seeking is premature. 19 For the foregoing reasons, IT IS HEREBY ORDERED as follows: 20 1. Petitioner’s March 16, 2017 motion for investigation (ECF No. 45) is denied; and 21 2. Petitioner’s March 21, 2017 motion for equal presentation (ECF No. 46) is denied. 22 Dated: June 30, 2017 23 24 25 26 27 DLB:9 DLB1/prisoner-habeas/neal2778.mtns(2) 28 2

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