Kenneth R. Barber Jr. v. C. Pfiffer

• Court: District Court, C.D. California
• Decided: January 2, 2020
• Docket: 2:19-cv-08927
• Status: Unknown

Opinion

2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 12 Case No. CV 19-8927 DMG (MRW) 13 KENNETH BARBER, ORDER DISMISSING ACTION 14 Petitioner, WITHOUT PREJUDICE 15 v. 16 C. PFIFFER, Warden, 17 Respondent. 18 19 The Court dismisses Petitioner’s defective habeas corpus action 20 without prejudice. 21 * * * 22 1. Petitioner Barber was convicted of attempted murder and other 23 charges in state court. The trial court sentenced him to life in prison. 24 2. After state appellate proceedings, Petitioner filed a habeas 25 petition in this federal court pursuant to 28 U.S.C. § 2254 to challenge his 26 conviction. The Court denied habeas relief in 2016. Barber v. Sherman, 27 No. CV 15-6327 DMG (MRW) (C.D. Cal.). The Ninth Circuit denied 28 1 Petitioner a certificate of appealability in early 2018. (CV 15-6327, Docket 2 # 34.) 3 3. Petitioner apparently wanted review of the matter in the 4 United States Supreme Court. He sought and obtained a brief extension of 5 his filing deadline from that court. However, owing to the closure of a 6 prison library, he contends that he was ultimately not able to file a timely 7 writ of certiorari with the Supreme Court. According to letters attached to 8 the petition in the current matter, the Supreme Court denied Petitioner’s 9 request to consider materials that he filed after the relevant deadline. 10 (Docket # 1 at 10.) 11 4. Petitioner filed this action in October 2019. He filed a form 12 petition under Section 2254. The gist of the petition was not a challenge to 13 his attempted murder conviction. Rather, the petition contends that 14 Petitioner was “deni[ed] access to the court” because he was prevented 15 from filing a timely certiorari application. (Docket # 1 at 5-6.) On that 16 basis, Petitioner contends that prison officials violated his constitutional 17 rights in 2018 by closing the library. 18 5. Magistrate Judge Wilner issued a screening order regarding 19 the petition. (Docket # 3.) That order noted that Petitioner’s habeas action 20 did not set forth any claim for relief of his conviction under Section 2254. 21 Judge Wilner informed Petitioner that a habeas corpus action was not the 22 proper method of pursuing this grievance. A civil rights action might be, 23 but the magistrate judge declined to convert the petition to a civil 24 complaint. (Docket # 3 at 2 n.1 (citing Wilwording v. Swenson, 404 U.S. 25 249, 251 (1971)).) 26 6. Judge Wilner also directed Petitioner to submit a supplemental 27 statement explaining whether he intended to pursue the flawed habeas 28 1 action. (Id.) Petitioner’s response indicated that the relief he wanted was 2 “to get my writ of cert heard” in the Supreme Court. (Docket # 5.) 3 * * * 4 7. If it “appears from the application that the applicant or person 5 detained is not entitled” to habeas relief, a court may dismiss a habeas 6 action without ordering service on the responding party. 28 U.S.C. § 2243; 7 see also Rule 4 of Rules Governing Section 2254 Cases in United States 8 District Courts (petition may be summarily dismissed if petitioner plainly 9 not entitled to relief); Local Civil Rule 72-3.2 (magistrate judge may submit 10 proposed order for summary dismissal to district judge “if it plainly 11 appears from the face of the petition [ ] that the petitioner is not entitled to 12 relief”). 13 8. Petitioner’s current habeas corpus action patently cannot lead 14 to relief. Section 2254 actions are limited to challenges to the 15 constitutionality of the state court judgment that led to the incarceration of 16 an inmate. 28 U.S.C. § 2254(a, d). The current action seeks, however, an 17 order from this district court requiring the Supreme Court to take up 18 Petitioner’s underlying case. That is not an appropriate or authorized 19 result of a habeas corpus claim. 20 9. Moreover, Judge Wilner did not abuse his discretion in 21 declining to convert the petition into a civil rights action. On its face, the 22 petition does not adequately identify any alleged tortfeasor at Petitioner’s 23 previous prison, not does it set forth a comprehensible claim that could 24 plausibly lead to damages.1 Wilwording, 404 U.S. at 251. 25 1 The Court notes that Petitioner Barber previously litigated several 26 civil rights claims in this district regarding the conditions of his confinement and other issues. See, e.g., Barber v. Santa Barbara County, No. CV 13-4645 DMG 27 (MRW) (C.D. Cal.); Barber v. Santa Barbara County, No. CV 11-2365 DMG (MLG) (C.D. Cal.). He knows the difference between habeas and civil rights 28 actions. 1 10. Therefore, the present action is hereby DISMISSED without 2 | prejudice. 3 IT IS SO ORDERED. 4 5 6 | DATED: January 2, 2020 Kh Oe mm, he 2 7 DOLL . GEE UNITED STATES DISTRICT JUDGE 8 9 Presented by: 10 | | 11 LU [ 12 HON. MICHAEL R. WILNER 13 | UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28