United States District Court, N.D. California
ORDER OF DISMISSAL
EDWARD M. CHEN, District Judge.
Eric Anderson, an inmate on death row at San Quentin State Prison, filed this pro se prisoner's civil rights action under 42 U.S.C. § 1983. His complaint is now before the Court for review under 28 U.S.C. § 1915A.
This case concerns the alleged delays and other problems in the state court review proceedings following the imposition of a sentence of death for Mr. Anderson. The docket for Mr. Anderson's automatic appeal, People v. Anderson (Eric Steve), Cal. S.Ct. No. S138474, provides the following information about his case: The judgment of death was entered in October 2005; appellate counsel was appointed in April 2009; the 10, 000 page record on appeal was filed in June 2011; after numerous extensions of the deadline, the appellant's 234-page opening brief was filed in November - respondent has received several extensions of the deadline to file the respondent's brief, with the current deadline for the respondent's brief being April 3, 2015. (The docket information was obtained from www.appellatecases.courtinfo.ca.gov (last visited February 11, 2015).)
Mr. Anderson's claims in this Court fit into two categories. First, he sues California Supreme Court Chief Justice Tani Cantil-Sakauye regarding the California Supreme Court's policies for death penalty cases. He alleges that the policies, such as the policy that habeas counsel will not be appointed and a habeas petition may not be filed until after the appellant's opening brief has been filed, and the policy not to entertain pro per motions from appellants represented by counsel - violate his federal constitutional rights. Mr. Anderson seeks an injunction and declaratory relief against California Supreme Court Chief Justice Tani Cantil-Sakauye for the violation of his rights in the policies that apply to death penalty cases.
Second, Mr. Anderson complains about the handling of his appeal by his appointed appellate counsel as well as persons at the California Appellate Project ("CAP") who play a role in assisting and guiding the representation of indigent death row inmates. He speculates that there is a written agreement between CAP and his attorney - an agreement that he has not seen and the terms of which he does not know - that must work to his disadvantage. See id. at 13-14. He claims that there are problems with the appellant's opening brief filed on his behalf because counsel failed to argue certain issues and "failed to raise other issues correctly, " id. at 19-22. His appellate counsel and the CAP defendants refuse to fix the problems with the appellant's opening brief even though Mr. Anderson has brought those problems to their attention.
Mr. Anderson requests the following relief: (a) an injunction against the operation of illegal policies; (b) an injunction compelling the removal of CAP from any involvement in his case; (c) an investigation of CAP employees and his attorney for violations of criminal law; (d) damages against the CAP defendants and his appointed appellate counsel; and (e) damages for the loss of his liberty since his appeal began. See id. at 23-24.
The Court notes that Mr. Anderson's challenge to the delays and other procedural problems in the California capital appeal process is similar to unsuccessful challenges filed by other death row inmates. See, e.g., Theodore Shove v. Brown, N.D. Cal. Case No. C 12-211 RMW (dismissed for failure to state a claim), appeal rejected in In re. Shove, Ninth Cir. No. 96-80069 ("Because the appeal is so insubstantial as to not warrant further review, it shall not be permitted to proceed"); Duff v. Brown, N.D. Cal. Case No. C 12-529 EMC (dismissed for failure to state a claim and for Younger abstention), affirmed on appeal in Duff v. Brown, Ninth Cir. No. 13-16511 (denying pauper status because "appeal is frivolous, " and later dismissing appeal for failure to prosecute when plaintiff failed to pay the filing fees and show cause why the judgment should not be summarily affirmed); Paul Bolin v. Brown, E. D. Cal. Case No. 12-cv-077 LJO GSA PC (dismissed under Younger abstention and Heck, and for failure to state a claim), affirmed on appeal in Bolin v. Brown, Ninth Cir. No. 12-17079; Richard Vieira v. Brown, E. D. Cal. Case No. 12-cv-0044-AWI-MJS (dismissed for failure to state a claim and pursuant to Younger and Heck ), affirmed on appeal in Vieira v. Schwarzenegger, Ninth Cir. No. 12-17501 (denying pauper status because "appeal is frivolous, " and later dismissing appeal for failure to prosecute when plaintiff failed to pay the filing fees and show cause why the judgment should not be summarily affirmed); Spencer Brasure v. Brown, C. D. Cal. Case No. 12-CV-1027-UA-DUTY (denying in forma pauperis application because the court lacked jurisdiction; the complaint was frivolous, malicious or failed to state a claim; and the complaint sought monetary relief from a defendant immune from such relief), affirmed on appeal in Brasure v. Brown, Ninth Cir. No. 12-55743 (denying pauper status because "appeal is frivolous, " and later dismissing appeal for failure to prosecute when plaintiff failed to pay the filing fees and show cause why the judgment should not be summarily affirmed).
A federal court must engage in a preliminary screening of any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. See id . at § 1915A(b). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
The complaint fails to state a claim under § 1983 against Mr. Anderson's appellate attorney and the CAP defendants aiding her (collectively, "the appellate team") because they are not state actors. State court criminal defendants cannot sue their lawyers in federal court for most lawyer-type mistakes. A public defender does not act under color of state law, an essential element of an action under 42 U.S.C. § 1983, when performing a lawyer's traditional functions, such as entering pleas, making motions, objecting at trial, cross-examining witnesses, and making closing arguments. Polk County v. Dodson, 454 U.S. 312, 318-19 (1981); cf. Vermont v. Brillon, 556 U.S. 81, 84 (2009) (state court erred in ranking assigned counsel essentially as state actors for purposes of evaluating speedy trial claim). A private attorney representing a defendant or appellant also is not a state actor. See generally Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003). Conclusory allegations of conspiracy, such as exist in Mr. Anderson's complaint, do not suffice to transform the appellate team's actions into state action. See id. Mr. Anderson's allegations against his appellate counsel and the CAP defendants for deficient representation in the capital appeal fall squarely within the scope of work that Polk County has determined is not actionable under § 1983. The claims for the alleged errors and inadequacies in the presentation of the appeal are dismissed. Leave to amend will not be granted because, even if Mr. Anderson could adequately plead a conspiracy and state action, the claims against his appellate counsel and the CAP defendants would have to be dismissed under the Heck rule discussed in the next paragraph.
The case of Heck v. Humphrey, 512 U.S. 477 (1994), held that a plaintiff cannot bring a civil rights action for damages for a wrongful conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, unless that conviction or sentence already has been determined to be wrongful. See id. at 486-87. A conviction or sentence may be determined to be wrongful by, for example, being reversed on appeal or being set aside when a state or federal court issues a writ of habeas corpus. See id. The Heck rule also prevents a person from bringing an action that - even if it does not directly challenge the conviction or other decision - would imply that the conviction or other decision was invalid. The practical importance of this rule is that a plaintiff cannot attack his conviction in a civil rights action for damages; the decision must have been successfully attacked before the civil rights action for damages is filed. The Heck rule was first announced with respect to an action for damages, but the Supreme Court has since applied the rule to actions that sought equitable relief as well as damages. If ...