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Gregory Downs, Iv v. Domingo Uribe

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


February 24, 2012

GREGORY DOWNS, IV,
PETITIONER, :
v.
DOMINGO URIBE, JR, WARDEN, ET AL.,
RESPONDENTS

The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

(1) DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS; (2) DENYING MOTION TO CORRECT THE DOCKET; AND (3) DISMISSING PETITION

ORDER

WITHOUT PREJUDICE

Petitioner, a state prisoner proceeding pro se, has submitted a "Rule 27 Petition" which has been docketed as a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, along with a motion to proceed in forma pauperis. (Doc. Nos. 1-2.) Petitioner seeks to take the deposition of two Deputy California Attorneys General in order to determine why his conviction has not been overturned, and to determine why no court has been informed that exculpatory material within the meaning of Brady v. Maryland, 373 U.S. 83 (1963), has been withheld from him. (Pet. at 3.) Petitioner has also filed a Motion to Correct the Docket in which he reiterates that he is bringing a "Rule 27 Petition" and not a habeas petition, and requests the docket be corrected. (Doc. No. 3.)

For the following reasons, it is clear that Petitioner has not satisfied the requirements for initiating a Rule 27 action, and that the instant action is properly construed as a federal habeas petition. Nevertheless, it is clear that the instant Petition is subject to dismissal irrespective of its form of action. Thus, the Court denies Petitioner's motion to correct the docket, denies his motion to proceed in forma pauperis as moot, and dismisses the Petition without leave to amend but without prejudice to Petitioner to present his claims in a habeas petition after he has secured permission from the Ninth Circuit Court of Appeals to file a second or successive petition.

Federal Rule of Civil Procedure 27 provides that:

A person who wants to perpetuate testimony about any matter cognizable in a United States court may file a verified petition in the district court for the district where any expected adverse party resides. The petition must ask for an order authorizing the petitioner to depose the named persons in order to perpetuate their testimony. The petition must be titled in the petitioner's name and must show:

(A) that the petitioner expects to be a party to an action cognizable in a United States court but cannot presently bring it or cause it to be brought;

(B) the subject matter of the expected action and the petitioner's interest;

(C) the facts that the petitioner wants to establish by the proposed testimony and the reasons to perpetuate it;

(D) the names or a description of the person whom the petitioner expects to be adverse parties and their addresses, so far as known; and

(E) the name, address, and expected substance of the testimony of each deponent.

Fed.R.Civ.P. 27(a)(1) (West 2011).

Petitioner is seeking to take the depositions of two Deputy California Attorneys General, but has not indicated that either resides in the Southern District of California, and has not indicated why he needs to perpetuate their testimony. Moreover, Petitioner has not identified the subject matter of his expected action, and has not explained why he is unable to bring an action at this time. In any case, Rule 27 is designed for prospective defendants who wish to preserve testimony, not plaintiffs. See Martin v. Reynolds Metals Corp., 297 F.2d 49, 55 (9th Cir. 1961) ("Abuse of the rule by potential plaintiffs, who might try to use it as a means of discovery to enable them to draw a complaint . . . seems to be avoided by the requirement of Rule 27 that the party seeking the deposition be unable to bring the suit or cause it to be brought.

The position of one who expects to be made a defendant is different, and we think that such a defendant should be, and is, entitled to use the Rule, upon a proper showing, to preserve important testimony that might otherwise be lost."); see also Nevada v. O'Leary, 63 F.3d 932, 935-36 (9th Cir. 1995) (holding that Rule 27 is not appropriate where "the petitioner seeks discovery of unknown information that the petitioner hopes will assist it in the future when the petitioner applies for judicial relief"). Therefore, the Court denies Petitioner's request to construe this action as a Rule 27 Petition.

Moreover, even if Petitioner could utilize the Rule 27 procedure and cure these defects, it is clear that he is attempting to pursue claims which he has or could have presented in other actions he has filed seeking the same Brady material. (See Pet. at 45, stating that Petitioner is seeking to utilize Rule 27 to address a due process violation arising from the failure to provide him with the same Brady material which was the subject of his prior federal habeas action in So.Dist.Ca.Civil Case No. 10cv2029-H (MDD).) On September 21, 2010, Petitioner filed a federal habeas petition in this Court in which he claimed that the Board of Prison Terms had entered into a stipulation with the Sacramento District Attorney to turn over Brady material to be used at Petitioner's parole hearing, but the material was not turned over. (See Pet. filed 9/21/10 [ECF No. 1] at 9 in So.Dist.Ca.Civil Case No.10cv2029-H (MDD).) This Court granted Respondent's motion to dismiss that petition as second or successive on the basis that Petitioner had previously raised his due process claim in the Eastern District in Downs v. Cal. Bd. or Prison Terms, No. 09cv0715-GSA (HC) (E.D.Cal., filed April 22, 2009). (See Order filed 4/27/11 [ECF No. 55] in So.Dist.Ca.Civil Case No. 10cv2029-H (MDD).) This Court also found that because the Sacramento District Attorney did not possess the material sought, there was no case or controversy, and that in any case Petitioner had not alleged a due process violation regarding his parole procedures under Swarthout v. Cooke, 562 U.S. ___, 131 S.Ct. 859, 862 (2011) (holding that a California prisoner has "received adequate process when he was allowed an opportunity to be heard and was provided a statement of the reasons why parole was denied"). (Id. at 6-7.) The Ninth Circuit dismissed the appeal after denying a Certificate of Appealability. (See Order filed 7/7/11 [ECF No. 62] in So.Dist.Ca.Civil Case No. 10cv2029-H (MDD).)

Petitioner contends in this action (see Pet. at 3) that he intends to file a motion for relief from judgment pursuant to Fed.R.Civ.P. 59 and 60 in this Court in that case.*fn1

The instant Petition, to the extent it alleges a due process violation arising from the failure to turn over the Brady material, is also second or successive to the prior petition. See Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001) ("Generally, a new petition is 'second or successive' if it raises claims that were or could have been adjudicated on their merits in an earlier petition.") Thus, to the extent the instant Petition presents a federal due process claim cognizable on federal habeas, the Court is precluded from considering it absent a demonstration by Petitioner that he has received permission from the Ninth Circuit Court of Appeals to proceed with a second or successive petition.*fn2 See 28 U.S.C.A. § 2244(b)(3)(A) ("before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the petition).

CONCLUSION

Based on the foregoing, the Court DENIES Petitioner's Motion to proceed in forma pauperis as moot, DENIES the Motion to correct the docket, and DISMISSES the Petition. The dismissal is without leave to amend but without prejudice to Petitioner to file a new Petition for a writ of habeas corpus, which will be given a new civil case number, after obtaining permission from the Ninth Circuit Court of Appeals to file a second or successive petition.

IT IS SO ORDERED.


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