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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT W. NEAL,

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No. 2:16-cv-2778 JAM DB P

Petitioner,
v.

ORDER

WARDEN OF SATF,

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Respondent.

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Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a

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writ of habeas corpus under 28 U.S.C. § 2254. Before the court are petitioner’s motions for an

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investigation and for “equal access to the courts.”

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In his motion for an investigation, petitioner appears to seek an order requiring an

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investigation into violations of his civil rights and into a criminal conspiracy. (ECF No. 45.)

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Petitioner is essentially asking the court to order a factual investigation into the bases for his

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petition. Petitioner’s request is premature. When, and if, the merits of petitioner’s claims are

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considered, the first step will be a determination of whether the state court decisions rejecting

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petitioner’s claims were unreasonable under 28 U.S.C. § 2254(d). Only after petitioner clears that

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hurdle may the court consider new evidence which was not presented to the state court. See

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Cullen v. Pinholster, 563 U.S. 170 (2011). Therefore, petitioner’s motion for an investigation

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will be denied.
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In his second motion, petitioner complains about the unfairness inherent in proceeding pro

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se against respondent, who is represented by counsel. Essentially, petitioner is again requesting

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the appointment of counsel. As the court informed petitioner in its order denying his prior

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request, the court does not find the appointment of counsel warranted at this time. (See Dec. 7,

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2016 Order (ECF No. 24).) Petitioner is advised that if at any point in this proceeding the court

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feels counsel should be appointed, the court will issue an order appointing counsel for petitioner.

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Finally, petitioner is warned that he must use restraint in filing motions. By the court’s

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count, petitioner has filed over 25 motions and requests to date. Many of petitioner’s motions

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seek the same things – factual development of his claims and the appointment of counsel.

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Petitioner may not continually file motions seeking the same relief without consequences. Under

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Federal Rule of Civil Procedure 11(b), a prisoner’s claims are considered frivolous if they

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“merely repeat[] pending or previously litigated claims.” Cato v. United States, 70 F.3d 1103,

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1105 n. 2 (9th Cir. 1995) (quoting Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988)).

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Sanctions for violation of Rule 11(b) may include dismissal of petitioner’s case. See Bell v.

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Harrington, No. 1:12-cv-0349-LJO-GBC (PC), 2012 WL 893815, *9 (E.D. Cal. Mar. 15, 2012).

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Petitioner should carefully consider whether any motion he intends to file is inappropriate

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because he has already filed the same, or a very similar, motion, or because the relief he is

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seeking is premature.

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For the foregoing reasons, IT IS HEREBY ORDERED as follows:

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1. Petitioner’s March 16, 2017 motion for investigation (ECF No. 45) is denied; and

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2. Petitioner’s March 21, 2017 motion for equal presentation (ECF No. 46) is denied.

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Dated: June 30, 2017

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DLB:9
DLB1/prisoner-habeas/neal2778.mtns(2)

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