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Anthony L. Tarkington v. William Smith Jr.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


May 8, 2013

ANTHONY L. TARKINGTON, PLAINTIFF,
v.
WILLIAM SMITH JR., DEPUTY ATTORNEY; MARY SANCHEZ, DEPUTY ATTORNEY GENERAL, DEFENDANTS.

The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE DISTRICT

This Report and Recommendation is submitted to the Honorable John A. Kronstadt, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

On June 11, 2012, Plaintiff, a state prisoner, filed a purported civil rights complaint pursuant to 42 U.S.C. section 1983. Plaintiff's claims concern his attempts, in state post-conviction proceedings, to obtain DNA*fn1 testing of an alleged blood sample under procedures set forth in California Penal Code section 1405. Defendants are: (1) William Smith, Jr., the prosecutor at Plaintiff's criminal trial; and (2) Mary Sanchez, a deputy district attorney who opposed Plaintiff's extraordinary writ petition filed in the California Court of Appeal. Plaintiff sues both Defendants in their official capacities only,*fn2 and seeks only declaratory and injunctive relief.

On September 21, 2012, Defendant Sanchez filed a Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Motion"), accompanied by a Request for Judicial Notice ("Defendant's Request for Judicial Notice"). On September 21, 2012, the Magistrate Judge issued a Minute Order inter alia stating that the Court might treat the Motion to Dismiss as a motion for summary judgment, and advising Plaintiff of the requirements of Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952 (9th Cir. 1997) (en banc), cert. denied, 527 U.S. 1035 (1999).*fn3

On November 28, 2012, Plaintiff filed an Opposition to the Motion ("Opposition"), accompanied by a Request for Judicial Notice.*fn4 Defendant Smith has not appeared in the action.

CALIFORNIA'S POST-CONVICTION DNA TESTING PROCEDURE

California Penal Code section 1405 provides that any person convicted of a felony who is serving a term of imprisonment "may make a written motion before the trial court" requesting forensic DNA testing. Cal. Penal Code § 1405(a). Upon a proper showing, the court "shall" appoint counsel for an indigent prisoner to assist in the preparation of the motion, if the court previously has not appointed counsel for such a purpose. Cal. Penal Code § 1405(b)(1); see In re Kinnamon, 133 Cal. App. 4th 316, 323, 34 Cal. Rptr. 2d 802 (2005). A court which previously has appointed counsel under section 1405 has discretion to appoint counsel on a subsequent application. Cal. Penal Code § 1405(b)(3)(B).

To obtain an order for DNA testing, the applicant's verified motion must "do all of the following":

(A) Explain why the identity of the perpetrator was, or should have been, a significant issue in the case.

(B) Explain, in light of all the evidence, how the requested DNA testing would raise a reasonable probability that the convicted person's verdict or sentence would be more favorable if the results of DNA testing had been available at the time of conviction.

(C) Make every reasonable attempt to identify both the evidence that should be tested and the specific type of DNA testing sought.

(D) Reveal the results of any DNA or other biological testing that was conducted previously by either the prosecution or defense, if known.

(E) State whether any motion for testing under this section previously has been filed and the results of that motion, if known.

Cal. Penal Code § 1405(c)(1).

The court has discretion to order a hearing on the motion. Cal. Penal Code § 1405(e). If the court finds that evidence previously was subject to DNA or other forensic testing, the court "shall order the party at whose request the testing was conducted to provide all parties and the court with access to the laboratory reports, underlying data, and laboratory notes." Cal. Penal Code § 1405(d). The court "shall" grant the motion if it determines that all of the following have been established:

(1) The evidence to be tested is available and in a condition that would permit the DNA testing requested in the motion.

(2) The evidence to be tested has been subject to a chain of custody sufficient to establish it has not been substituted, tampered with, replaced or altered in any material aspect.

(3) The identity of the perpetrator of the crime was, or should have been, a significant issue in the case.

(4) The convicted person has made a prima facie showing that the evidence sought to be tested is material to the issue of the convicted person's identity as the perpetrator of, or accomplice to, the crime, special circumstance, or enhancement allegation that resulted in the conviction or sentence.

(5) The requested DNA testing results would raise a reasonable probability that, in light of all the evidence, the convicted person's verdict or sentence would have been more favorable if the results of DNA testing had been available at the time of conviction. The court in its discretion may consider any evidence whether or not it was introduced at trial.

(6) The evidence sought to be tested meets either of the following conditions:

(A) The evidence was not tested previously.

(B) The evidence was tested previously, but the requested DNA test would provide results that are reasonably more discriminating and probative of the identity of the perpetrator or accomplice or have a reasonable probability of contradicting prior test results.

(7) The testing requested employs a method generally accepted within the relevant scientific community.

(8) The motion is not made for the purpose of delay.

Cal. Penal Code § 1405(f).

FACTUAL BACKGROUND

In 1997, a jury found Plaintiff guilty of second degree murder with personal use of a deadly weapon, a knife (Complaint, p. 4). According to the prosecution's evidence, Plaintiff fought with the victim while the two were waiting in a crowd to receive free coffee and donuts, and Plaintiff stabbed the victim during this fight (Defendant's Request for Judicial Notice, Ex. 1, p. 2).*fn5 Plaintiff left the scene, followed by a witness (id., p. 3). The witness lost sight of Plaintiff on a street where the only open door was that of a hotel which later was determined to be Plaintiff's residence (id.). After reviewing the hotel surveillance tape, police searched Plaintiff's room and found a shoe bearing a small speck of blood (id., pp. 3-4). DNA analysis of the blood determined that the frequency of the DNA combination in the African-American population was one in 35,000 (id., p. 4). A police criminalist concluded that the blood was not Plaintiff's blood (id.). At trial, three witnesses, including the witness who had followed Plaintiff to the hotel, identified Plaintiff as the assailant (id.).

Plaintiff received a sentence of 46 years to life (id.). The California Court of Appeal affirmed the judgment (id.; Defendant's Request for Judicial Notice, Ex. 1). The California Supreme Court denied Plaintiff's petition for review (see Docket in People v. Tarkington, California Supreme Court case number S074033).*fn6

On December 28, 1998, Plaintiff filed a habeas corpus petition in this Court, in Tarkington v. Castro, CV 98-10482-WDK(AIJ).*fn7 On November 3, 1999, the Magistrate Judge issued a Report and Recommendation recommending denial of such petition on the merits, with prejudice. On January 11, 2000, the District Judge issued an Order Adopting Findings, Conclusions and Recommendations of United States Magistrate Judge. Judgment was entered on January 18, 2000. The United States Court of Appeals for the Ninth Circuit denied Plaintiff's request for a certificate of appealability on September 20, 2000. The United States Supreme Court denied certiorari on May 14, 2001. See Tarkington v. Castro, 532 U.S. 1025 (2001). Subsequently, the Ninth Circuit has denied four applications by Plaintiff for leave to file a second or successive petition.*fn8

In 2000, the California Legislature enacted California Penal Code section 1405, effective January 1, 2001. In 2004, the Los Angeles County Superior Court appointed counsel for Plaintiff pursuant to section 1405 "per the request of the Petitioner" (see Defendant's Request for Judicial Notice, Ex. 3, p. 1; Ex. 4). On September 23, 2004, counsel executed a declaration stating that, after contacting the Los Angeles Police Department crime laboratory and the Superior Court's Clerk's Office, counsel allegedly had ascertained that all evidence had been "disposed of as of August 23, 2000" (Defendant's Request for Judicial Notice, Ex. 2). On September 24, 2004, the Superior Court denied "Plaintiff's Motion For DNA Testing" (Defendants' Request for Judicial Notice, Exs. 3, 4).

On June 17, 2008, Plaintiff filed a request for appointment of counsel to file another motion for DNA testing pursuant to Penal Code section 1405 (Defendant's Request for Judicial Notice, Ex. 5). In the verified request, Plaintiff stated: "Petitioner has not previously had counsel appointed under Calif. Penal Code Section 1405" (id., p. 1). On June 23, 2008, the Superior Court denied the motion for failure to submit documentation required by Penal Code section 1405 and as "unmeritorious" (Defendant's Request for Judicial Notice, Ex. 6).

On July 14, 2008, Plaintiff filed a "Petition for Writ of Mandamus/Prohibition, etc." in the Court of Appeal (Defendant's Request for Judicial Notice, Ex. 7). The Court of Appeal construed the petition as a petition for writ of habeas corpus and denied the petition on July 30, 2008 (Defendant's Request for Judicial Notice, Ex. 8).

On September 15, 2008, Plaintiff filed a motion for DNA testing pursuant to Penal Code section 1405 in the Superior Court, which that court denied on the same date (Defendant's Request for Judicial Notice, Ex. 9). The court stated:

. . . Defendant asserts additional DNA testing is appropriate and would raise a "reasonable probability" of a more favorable verdict. A drop of blood on a shoe found in defendant's hotel room was subject to DNA testing and compared to a hair from the murder victim. The DNA expert testified that the victim could not be excluded as the source of the blood on the shoe, but that the frequency of occurrence of the DNA in the African American population was fairly high, i.e., one in thirty-five thousand. In other words, while there were similarities in the DNA from the blood and the hair, . . . the expert could not, and did not, state that the victim's blood was on the shoe.

Defendant asserts that additional DNA testing of additional hairs from the victim . . . would provide a more favorable result. In the court's view, this is nothing more than speculation.

The court remains unconvinced that the threshold showing required to compel further DNA testing has been met. The motion is therefore denied.

(id.).

Plaintiff filed a second "Petition for Writ of Mandamus/ Prohibition, etc." in the Court of Appeal on October 6, 2008 (Defendant's Request for Judicial Notice, Ex. 10). In an attached declaration, Plaintiff again stated that he previously had not had counsel appointed to represent him under Penal Code section 1405 (id., p. 10). The Court of Appeal issued an order to show cause on October 22, 2008, and appointed attorney Diane Berley to represent Plaintiff on November 12, 2008 (Defendant's Request for Judicial Notice, Ex. 11; Docket of California Court of Appeal in Tarkington v. S.C.L.A., California Court of Appeal case number B211141).*fn9

On November 14, 2008, Defendant Sanchez, acting on behalf of the State, filed an opposition to the petition (Defendant's Request for Judicial Notice, Ex. 12). In her opposition, Defendant Sanchez stated, inter alia, that "petitioner apparently committed perjury by filing multiple declarations under penalty of perjury stating that he has never been appointed counsel for a 1405 motion, when he was indeed appointed counsel in 2004" (id., p. 9). Attorney Berley filed a response to Defendant Sanchez' opposition on December 16, 2008 (Defendant's Request for Judicial Notice, Ex. 13; see Docket of California Court of Appeal in Tarkington v. S.C.L.A., California Court of Appeal case number B212141).

The matter was argued before the Court of Appeal on January 14, 2009 (id.). On January 22, 2009, Plaintiff filed "Petitioner's Objections to the None [sic] Personal Appearance, etc.," inter alia objecting to a hearing held in Plaintiff's absence, and contending that Plaintiff was unaware of the Superior Court's previous proceedings, including the order appointing counsel in those proceedings (Defendant's Request for Judicial Notice, Ex. 14, p. 2). On January 22, 2008, the Court of Appeal discharged the order to show cause and denied the petition (Defendant's Request for Judicial Notice, Ex. 15; see Tarkington v. Superior Court, 2009 WL 146764 (Cal. App. Jan. 22, 2009), cert. denied, 130 S. Ct. 142 (2009)). The California Supreme Court denied Plaintiff's petition for review on April 1, 2009 (see Docket of the California Supreme Court in Tarkington v. Superior Court (People), California Supreme Court case number S170404).*fn10

SUMMARY OF PLAINTIFF'S CONTENTIONS

Plaintiff contends:

1. Defendant Smith allegedly violated his ethical obligations, assertedly by failing to inform the "appropriate authority" of alleged "after-acquired" information purportedly casting doubt on the correctness of the DNA evidence introduced at trial; there assertedly is a reasonable probability that the "newly discovered" PCR-STR test, had it been applied to the DNA evidence, would have yielded a more favorable result for Plaintiff at his criminal trial (Complaint, pp. 6, 8);

2. Defendant Smith allegedly deliberately destroyed DNA evidence, purportedly in violation of due process and state law (id., pp. 7-8);

3. Defendant Sanchez allegedly violated due process, by assertedly: (1) including incorrect and misleading statements in her opposition to Plaintiff's state court writ petition; (2) relying on statements of Plaintiff's "secretly appointed" lawyer in the 2004 Superior Court proceeding; and (3) misrepresenting to the Court of Appeal that Plaintiff had committed perjury when he stated under oath that he previously had not been appointed counsel in earlier section 1405 proceedings (id., pp. 9, 11-12).

Plaintiff seeks the following relief:

1. A declaration that Plaintiff allegedly is entitled to further DNA testing of the "bloodstained tennis shoe," "regardless of the uncomfirmed [sic] assertion that all the DNA evidence was allegedly destroyed or misplaced as of August 23, 2000";

2. A declaration that, under the Due Process Clause and Penal Code section 1417.9, Plaintiff allegedly was entitled to notice prior to the reported destruction of DNA/biological evidence;

3. A declaration that Plaintiff allegedly is entitled to a "thorough investigation as to whether any DNA evidence samples remains [sic] in the Los Angeles Police Department Property Division/Crime laboratory that was allegedly destroyed or misplaced as of August 23, 2000," and an investigation to determine the identity of the person who allegedly destroyed the evidence and to determine whether notice of the destruction was given;

4. A declaration that Defendant Smith assertedly violated due process, allegedly by failing to preserve the DNA evidence; and

5. A declaration that Defendant Sanchez allegedly violated due process, assertedly by "siding" with the Superior Court and by depriving Plaintiff of the alleged right to be present during the 2008 hearing in the Court of Appeal (id., pp. 13-14).

Plaintiff also seeks an injunction requiring Defendants to turn over all documentation pertaining to the DNA evidence that was used at trial and all records concerning the chain of custody and destruction of the DNA evidence purportedly located within the Los Angeles Police Department Property Division/Crime Laboratory pertaining to Plaintiff's criminal case (id., p. 15).

DEFENDANT'S CONTENTIONS

Defendant Sanchez contends: /// ///

1. Plaintiff's challenge to the state courts' denial of his requests for DNA testing and appointment of counsel assertedly is foreclosed by District Attorney's Office for the Third Judicial District v. Osborne, 557 U.S. 52 (2009) ("Osborne");

2. The Complaint assertedly fails to allege facts connecting Sanchez to any alleged constitutional violation; and

3. Defendant Sanchez is entitled to qualified immunity.

PLAINTIFF'S OPPOSITION TO THE MOTION

In his Opposition, Plaintiff asserts he is not contending that California's procedures for post-conviction DNA testing are inadequate, but rather that "the state governing statute was applied in an unconstitutional manner" (Opposition, p. 12). Plaintiff asserts that the state courts violated due process by denying Plaintiff's section 1405 motions, thereby allegedly denying Plaintiff the opportunity to investigate whether any DNA sample was retained (id., p. 13). Plaintiff contends that Defendant Sanchez' opposition to Plaintiff's writ application purportedly involved "kangaroo court style proceedings" at which Plaintiff assertedly was denied the right to be present (id.). Plaintiff challenges the Superior Court's 2004 determination that no DNA sample remained available to test, asserting that this determination was based on the allegedly "faulty investigation and erroneous declaration" of Plaintiff's counsel in the 2004 proceeding upon which Defendant Sanchez assertedly relied (id., pp. 13, 16).

The Opposition also contains allegations not raised in the Complaint. Plaintiff appears to allege that the trial court violated due process and the Double Jeopardy Clause when the court dismissed the first degree murder charge but permitted the jury to find Plaintiff guilty of second degree murder, and that Defendant Sanchez allegedly violated Plaintiff's rights by supposedly ignoring these purported constitutional violations in her brief filed in the Court of Appeal (Opposition, pp. 5-9, 11, 17-18, 20-21, 23, 25-26). Plaintiff alleges that the police purportedly suppressed or destroyed DNA evidence in bad faith and without notice, assertedly in violation of Brady v. Maryland, 373 U.S. 83, 87 (1963), and state law (Opposition, pp. 13-15, 27).*fn11 Plaintiff accuses Defendants of "cover[ing] up the destruction of potential exculpatory evidence" (id., p. 19). Plaintiff asserts that purportedly "inconclusive" DNA evidence was used "to improperly convict Plaintiff" (id., p. 12), and states in an accompanying declaration that Plaintiff "is being held in false imprisonment on a wrongful conviction base[d] on faulty, inaccurate & inconclusive DNA test results that should not have been allowed to be submitted to the jury, after the acquittal judgment was entered [on the first degree murder allegation]" (id., p. 26).

STANDARDS GOVERNING MOTION TO DISMISS

"[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted); Zucco Partners, LLC v. Digimatic Corp., 552 F.3d 981, 989 (9th Cir. 2009) (on motion to dismiss, court takes as true all nonconclusory factual allegations in the complaint and construes the complaint in the light most favorable to the plaintiff).

"Generally a court may not consider material beyond the complaint in ruling on a Fed.R.Civ.P. 12(b)(6) motion." Intri-Plex Technologies, Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007) (citation and footnote omitted). However, the Court may consider matters properly the subject of judicial notice. See Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). The Court may consider allegations in Plaintiff's Opposition in deciding whether to grant leave to amend. See Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003).

DISCUSSION

I. Plaintiff's Claims Implicating the Validity of His Conviction Are Not Cognizable in This Civil Rights Action.

Plaintiff's claims that challenge his conviction or otherwise implicate the validity of his conviction are not cognizable in this action. A plaintiff may not in a civil rights action challenge a conviction or seek release from confinement. Habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks speedier release. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).

Further, in Heck v. Humphrey, 512 U.S. 477 (1994) ("Heck"), the United States Supreme Court held that, in order to pursue a claim for damages arising out of an allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a civil rights plaintiff must prove that the conviction or sentence has been "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Heck, 512 U.S. at 486-87. Heck applies where "a judgment in the prisoner's favor necessarily implicates the validity of the prisoner's sentence." Hill v. McDonough, 547 U.S. 573, 580 (2006) (citation omitted). Heck also applies to claims for declaratory or injunctive relief which necessarily implicate the validity of a conviction or sentence. See Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) ("a state prisoner's § 1983 action is barred (absent prior invalidation) - no matter the relief sought (damages or equitable relief) . . . if success in that action would necessarily demonstrate the invalidity of confinement or its duration") (original emphasis).

Therefore, Plaintiff cannot bypass the habeas remedy by arguing in a civil rights action that his conviction is invalid because of alleged violations of due process, double jeopardy, Brady, etc. See Skinner v. Switzer, 131 S. Ct. 1289, 1300 (2011) ("Brady claims have ranked within the traditional core of habeas corpus and outside the province of § 1983") (citations omitted); Heck, 512 U.S. at 479, 490 (claim that prosecutors and police investigator destroyed exculpatory evidence could not be maintained under section 1983); Turner v. Dumanis, 415 Fed. App'x 831 (9th Cir. 2011) (affirming dismissal of constitutional challenge to alleged destruction of DNA evidence under Heck).

Plaintiff's claims challenging or implicating the validity of his conviction must be dismissed without prejudice. See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (declining to convert civil rights complaint barred by Heck into habeas petition; to do so might foreclose effective review of habeas claims not asserted in civil rights action); see also McQuillion v. Schwarzenegger, 369 F.3d 1091, 1099 (9th Cir. 2004) (affirming dismissal of civil rights complaint without leave to amend where amendment would have been futile due to Heck bar). Accordingly, the Court should dismiss without prejudice, but without leave to amend, Plaintiff's claims challenging or implicating the validity of his conviction. See id.; see also Vandament v. Duncan, 402 Fed. App'x 224, 224 (9th Cir. 2010) (affirming dismissal of Heck-barred claim without leave to amend as "futile"); Reed v. Lowe, 2012 WL 1460588, at *4 (C.D. Cal. Mar. 16, 2012), adopted, 2012 WL 1461360 (C.D. Cal. Apr. 26, 2012) (dismissing Heck-barred claim without leave to amend because amendment would be futile).

II. Plaintiff's Challenges to the State Courts' Rejection of Plaintiff's Requests for Counsel and for DNA Testing Do Not State a Cognizable Claim for Relief.

Plaintiff's challenges to the state courts' denials of Plaintiff's requests for counsel and for DNA testing are not cognizable for several reasons.

First, this Court lacks subject matter jurisdiction to review the determinations of the state courts concerning Plaintiff's motions for appointment of counsel and DNA testing. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); see also Exxon Mobil Corp. v. Saudi Basic Industries, Inc., 544 U.S. 280, 284 (2005) ("Rooker-Feldman" doctrine applies to "cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments"); Alvarez v. Attorney General for Fla., 679 F.3d 1257, 1262-64 (11th Cir. 2012) (Rooker-Feldman doctrine deprived district court of jurisdiction over claim that state courts erroneously applied and interpreted state's DNA access procedures); McKithin v. Brown, 626 F.3d 143, 154-55 (2d Cir. 2010) (same).*fn12

The Rooker-Feldman doctrine does not bar a section 1983 challenge to the constitutionality of a state's post-conviction DNA testing statute. Skinner v. Switzer, 131 S. Ct. at 1298 (Rooker-Feldman doctrine did not deprive court of jurisdiction to hear constitutional challenge to state's post-conviction DNA testing statute, where plaintiff did not challenge adverse state court decisions, but rather challenged the state statute those courts construed); see also Alvarez v. Attorney General for Fla., 679 F.3d at 1263 (distinguishing Skinner v. Switzer because Alvarez had not challenged the constitutionality of the state's DNA testing statute). Therefore, this Court would have subject matter jurisdiction over a constitutional challenge to Penal Code section 1405. See id.

In Osborne, the United States Supreme Court held that an inmate enjoys no substantive due process right to post-conviction DNA testing. Osborne, 557 U.S. at 72-73. Due process requires only that, if a state provides a post-conviction DNA testing procedure, that procedure must comport with fundamental fairness. Id. at 69. "Federal courts may upset a State's post-conviction relief procedures only if they are fundamentally inadequate to vindicate the substantive rights provided." Id.

In his Opposition, Plaintiff purports not to challenge the fundamental fairness of the procedures set forth in California Penal Code section 1405 (see Opposition, p. 12). In any event, the procedures set forth in Penal Code section 1405 pass muster under Osborne. Like the Alaska procedure deemed constitutional in Osborne, the California procedure contains no time limits for relief, and permits limited post-conviction discovery. See Osborne, 557 U.S. at 70; Cal. Penal Code § 1405(d). Both procedures require a sworn statement that the applicant is innocent. See Osborne, 557 U.S. at 63 (citing California Penal Code section 1405). The California procedure is less exacting in some respects than the Alaska procedure upheld in Osborne. The Alaska procedure, unlike the California procedure, requires a sworn attestation of innocence and a showing that the evidence was newly available and had been diligently pursued. See Osborne, 557 U.S. at 70. The California procedure is also similar to the federal post-conviction DNA testing statute, 18 U.S.C. section 3600,*fn13 which the Supreme Court expressly approved in Osborne as "not inconsistent" with "any recognized principle of fundamental fairness." See Osborne, 557 U.S. at 70 (citation and internal quotations omitted). The present Petition's claim that the state courts violated due process by denying Plaintiff DNA testing to show his purported innocence is precisely the sort of substantive due process claim precluded by Osborne. See Harrison v. Dumanis, 343 Fed. App'x 218 (9th Cir. 2009); Liggins v. Hoops, 2011 WL 3022233, at *6 (C.D. Cal. July 22, 2011); see also Alvarez v. Attorney General for Fla., 679 F.3d at 1264.

Additionally, any claim that Sanchez or the Court of Appeal violated an alleged right of Plaintiff to be present at the hearing in the Court of Appeal fails to allege a federal constitutional violation. See Oken v. Warden, MSP, 233 F.3d 86, 94 (1st Cir. 2000), cert. denied, 532 U.S. 962 (2001) (petitioner had no constitutional right to be present at post-conviction hearing); McLead v. Galaza, 2011 WL 4104867, at *8 (C.D. Cal. Jan. 26, 2011), adopted, 2011 WL 4104862 (C.D. Cal. Sept. 13, 2011) (same; citing Oken v. Warden, MSP).

Finally, to the extent Plaintiff contends the state courts violated state law by denying Plaintiff DNA testing, any such contention does not allege a cognizable claim under section 1983. To state a claim under section 1983, a plaintiff must allege a violation of a right secured by the constitution or federal law. Parratt v. Taylor, 451 U.S. 527, 535 (1982), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986); Haygood v. Younger, 769 F.2d 1350, 1353 (9th Cir. 1985), cert. denied, 478 U.S. 1020 (1986). Mere allegations of state law violations do not suffice to plead a section 1983 claim. See Cornejo v. County of San Diego, 504 F.3d 853, 855 n.2 (9th Cir. 2007) ("a claim for violation of state law is not cognizable under § 1983") (citation omitted); Lowell v. Poway Unif. Sch. Dist., 90 F.3d 367, 370-71 (9th Cir. 1996) ("To the extent that the violation of a state law amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the federal Constitution, Section 1983 offers no redress"; citation omitted).

CONCLUSION

The Complaint fails to state any federal claim for relief under section 1983 against Defendant Sanchez. For the reasons stated above, granting leave to amend would be futile. However, any claims challenging the validity of Plaintiff's conviction must be dismissed without prejudice. See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (court should dismiss a claim barred by Heck without prejudice "so that [the plaintiff] may reassert his claims if he ever succeeds in invalidating his conviction.").

Although Defendant Smith has not appeared in the action, the claims against Defendant Smith are equally defective for the same reasons discussed above. The Court may dismiss an action in favor of non-moving defendants "where such defendants are in a position similar to that of moving defendants or where claims against such defendants are integrally related." Silverton v. Dep't of Treasury, 644 F.2d 1341, 1345 (9th Cir.), cert. denied, 454 U.S. 895 (1981). Therefore, the Complaint should be dismissed against Defendant Smith as well, with prejudice with respect to the due process claims arising out of Plaintiff's requests for DNA testing, and without prejudice with respect to Plaintiff's claims challenging the validity of Plaintiff's conviction.

RECOMMENDATION

For the reasons discussed below, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; (2) granting Defendant Sanchez' Motion to Dismiss; and (3) dismissing the Complaint without leave to amend as against both Defendant Sanchez and Defendant Smith: (a) with prejudice to the extent the Complaint challenges Defendants' alleged actions or inactions with regard to Plaintiff's post-conviction requests for DNA testing; and (b) without prejudice as to Plaintiff's claims challenging the validity of his conviction.*fn14

DATED: December 12, 2012.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.


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