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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 G. MEMO VERA, Case No. 1:24-cv-01045-SKO (HC)

12 Petitioner, FINDINGS AND RECOMMENDATION TO

DISMISS PETITION FOR WRIT OF

13 v. HABEAS CORPUS

14 5TH APPELLATE DISTRICT, ORDER DIRECTING CLERK OF COURT

TO ASSIGN DISTRICT JUDGE

15 Respondent. [TWENTY-ONE DAY OBJECTION 16 DEADLINE]

17 18 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254. After conducting a preliminary review of the petition, the Court 20 finds it fails to state a cognizable claim; and to the extent it challenges his conviction, it is 21 successive. The Court will recommend it be DISMISSED. 22 DISCUSSION 23 I. Preliminary Review of Petition 24 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary 25 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it 26 plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the 27 Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1 appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. 2 Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 3 II. Failure to State a Claim 4 A habeas corpus petition is the correct method for a prisoner to challenge the “legality 5 or duration” of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting 6 Preiser v. Rodriguez, 411 U.S. 475, 485 (1973)). In contrast, a civil rights action pursuant to 42 7 U.S.C. § 1983 is the proper method for a prisoner to challenge the conditions of confinement. 8 McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499. Petitioner states 9 he is entitled to free copies to further his appeal. (Doc. 1 at 3.) Petitioner appears to seek this 10 Court’s intervention to obtain documents from the Tulare County District Attorney’s Office, 11 the Tulare County Public Defender’s Office, or the California Court of Appeal, Fifth Appellate 12 District. Such claims do not involve the underlying conviction and are not cognizable in a 13 federal habeas action. This Court does not serve in some supervisory role overseeing discovery 14 and document production in state court cases. Petitioner must seek relief for his complaints in 15 the state courts. 16 In Nettles v. Grounds, 830 F.3d 922, 936 (9th Cir. 2016), the Ninth Circuit held that a 17 district court has the discretion to construe a habeas petition as a civil rights action under § 18 1983. However, recharacterization is appropriate only if it is “amenable to conversion on its 19 face, meaning that it names the correct defendants and seeks the correct relief,” and only after 20 the petitioner is warned of the consequences of conversion and is provided an opportunity to 21 withdraw or amend the petition. Id. Here, the Court does not find recharacterization to be 22 appropriate. Petitioner does not name proper defendants and the claims are not amenable to 23 conversion on their face. Accordingly, the Court should not exercise its discretion to 24 recharacterize the action. The Court will recommend that the action be dismissed. 25 III. Successive Petition 26 A federal court must dismiss a second or successive petition that raises the same 27 grounds as a prior petition. 28 U.S.C. § 2244(b)(1). The court must also dismiss a second or 1 on a new, retroactive, constitutional right or 2) the factual basis of the claim was not previously 2 discoverable through due diligence, and these new facts establish by clear and convincing 3 evidence that but for the constitutional error, no reasonable factfinder would have found the 4 applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B). However, it is not 5 the district court that decides whether a second or successive petition meets these requirements. 6 Section 2244 (b)(3)(A) provides: "Before a second or successive application permitted by 7 this section is filed in the district court, the applicant shall move in the appropriate court of 8 appeals for an order authorizing the district court to consider the application." In other words, 9 Petitioner must obtain leave from the Ninth Circuit before he can file a second or successive 10 petition in district court. See Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must 11 dismiss any second or successive petition unless the Court of Appeals has given Petitioner 12 leave to file the petition because a district court lacks subject-matter jurisdiction over a second 13 or successive petition. Burton v. Stewart, 549 U.S. 147, 152 (2007); Cooper v. Calderon, 274 14 F.3d 1270, 1274 (9th Cir. 2001). 15 To the extent Petitioner seeks to challenge his 1997 conviction, his petition is 16 successive. Petitioner previously sought federal habeas relief in this Court with respect to his 17 1997 conviction in Vera v. Ryan, Case No. 1:04-cv-06349-OWW-TAG. The petition was 18 dismissed as untimely. A “dismissal of a first habeas petition for untimeliness presents a 19 ‘permanent and incurable’ bar to federal review of the underlying claims,” and thus renders 20 subsequent petitions “second or successive”. McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 21 2009). Thus, the instant petition is “second or successive” under 28 U.S.C. § 2244(b). 22 Petitioner makes no showing that he has obtained prior leave from the Ninth Circuit to file his 23 successive petition. Therefore, this Court has no jurisdiction to consider any renewed 24 application for relief under 28 U.S.C. § 2254 and must dismiss the petition. See Burton, 549 25 U.S. at 157. 26 ORDER 27 The Clerk of Court is DIRECTED to assign a District Judge to this case. 1 RECOMMENDATION 2 For the foregoing reasons, the Court HEREBY RECOMMENDS that the petition be 3 DISMISSED. 4 This Findings and Recommendation is submitted to the United States District Court 5 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and 6 Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of 7 California. Within twenty-one (21) days after being served with a copy, Petitioner may file 8 written objections with the Court. Such a document should be captioned “Objections to 9 Magistrate Judge’s Findings and Recommendation.” The Court will then review the Magistrate 10 Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file 11 objections within the specified time may waive the right to appeal the District Court’s order. 12 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13

IT IS SO ORDERED.

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15 Dated: September 9, 2024 /s/ Sheila K. Oberto .

UNITED STATES MAGISTRATE JUDGE

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