United States District Court, E.D. California
ORDER DISMISSING SECOND AMENDED COMPLAINT FOR LACK OF
SUBJECT MATTER JURISDICTION (DOC. 23) ORDER CLOSING
Feliciano Gallegos, appearing pro se and in
forma pauperis, filed a complaint alleging civil rights
violations pursuant to 42 U.S.C. § 1983 against numerous
defendants.Gallegos initiated this case by the filing
the original complaint on August 26, 2015 (Doc. 1). He
subsequently filed a First Amended Complaint on December 2,
2015 (ECF No. 13), and a Second Amended Complaint (2AC) on
May 11, 2016 (ECF No. 23.) The 2AC is presently before the
Court for screening pursuant to 28 U.S.C. §
is a California state prisoner presently serving an
indeterminate sentence of twenty-five years to life for an
incident occurring on September 3, 1985 resulting from his
conviction for assault with a deadly weapon and first degree
murder in Madera County, California. He is presently incarcerated
at the Pleasant Valley State Prison in Coalinga, California.
maintains that he was wrongly convicted of the crimes for
which he is presently serving his sentence. He asserts that
he was not perpetrator of the crime on September 3, 1985, and
there was no physical evidence linking him to the crime. (ECF
No. 23 at 22.) Specifically, Gallegos states that there was
“no blood or marks on hands or body, no blood on
clothes or shoes, no fingerprints or blood on weapon (per
D.O.T. lab results), no signs of any altercations (no rips on
clothes etc.).” (Id.) He has filed motions and
petitions in various courts in California seeking to invoke
California Penal Code § 1405, entitled Motion for DNA
Testing (“§ 1405”), which provides convicted
felons a right to file a motion for post-conviction DNA
testing, and sets out eight detailed fact-based criteria for
granting the motion. Cooper v. Ramos, 704 F.3d 772,
775 (9th Cir. 2012) (citing Cal.Penal Code § 1405).
28, 2013, Gallegos filed a motion for DNA testing pursuant to
§ 1405 in the California Superior Court in Madera
county. (ECF No. 23 at 34.) The Court appointed counsel,
attorney Martin Jones of the law firm of Ciummo and
Associates (Madera, California), for Gallegos on August 1,
2013. (Id. at 36.) In order to grant the motion,
Cal. Penal Code § 1405 requires a statement from the
movant that “he or she was not the perpetrator of the
crime…” and “why the identity of the
perpetrator was, or should have been, a significant issue in
the case.” Attorney Jones conducted an investigation
into of the circumstances of Gallegos' criminal case and
determined that the identity of the perpetrator was not a
disputed issue in the case. (Id.) California
Superior Court Judge Ernest J. LiCalsi denied Gallegos'
motion for DNA testing by written order on November 7, 2013.
filed multiple petitions for a writ of mandate in the
Superior Court (id. at 40-60) before ultimately
filing the petition in the California Fifth District Court of
Appeal on February 21, 2014 (id. at 66). The Fifth
District denied the petition on the merits because the
“motion filed in superior court did not contain the
statement required by Penal Code section 1405, subdivision
Gallegos filed a complaint with the California State Bar on
February 17, 2014, against his appointed attorney, Martin
Jones. (Id. at 62.) He alleged that appointed
counsel failed to notify him of the status of the Superior
Court proceedings. At the request of the California State
Bar, attorney Jones wrote a letter to Gallegos explaining
that, after his appointment as counsel, he conducted an
investigation. (Id. at 70-71.) At the conclusion of
the investigation, attorney Jones determined that it was not
appropriate to appropriate to file the § 1405 motion
because 1) Gallegos was identified at the scene by the
victim, and 2) Gallegos admitted being present at the scene
in his statement to the probation officer. (Id. at
71.) Thus, attorney Jones was unable to state that the
identity of the perpetrator was a significant disputed issue
or explain how DNA testing would raise a reasonable
probability of a more favorable verdict, as required by
§ 1405. (Id.)
11, 2014, Gallegos refiled his motion for DNA testing
pursuant § 1405 in California Superior Court, Madera
county. (Id. at 85.) Once again, Superior Judge
LiCalsi denied the motion on June 30, 2014 by written order.
(Id. at 90-91.)
then attempted, in October 2014, to file a petition for writ
of habeas corpus in the California Supreme Court.
(Id. at 93-94.) The California Supreme Court refused
to file the petition because the “California Rules of
Court do not authorize such a filing when the petition for
writ of habeas corpus is denied without the issuance of an
order to show cause.” (Id.)
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 was filed in the U.S. District Court for the
Eastern District of California on November 26, 2014. See
Gallegos v. On Habeas Corpus, Case No. 14cv1911 (Cal.
E.D., November 26, 2015). Gallegos requested that the federal
court issue a certificate of appealability with respect to
the October 29, 2014, decision of the California Supreme
Court. (Id.) In an order dated April 15, 2015, U.S.
Magistrate Judge Barbara M. McAuliffe dismissed Gallegos'
habeas petition as excessive and declined to issue a
certificate of appealability. Gallegos v. On Habeas
Corpus, Case No. 14cv1911 (Cal. E.D., April 15, 2015).
appeal, the U.S. Court of Appeals for the Ninth Circuit
(“Ninth Circuit”) denied the request for a
certificate of appealability in an order dated June 12, 2015.
Gallegos v. On Habeas Corpus, Case No.
15-15948 (9th Cir. Jun. 12, 2015). In the same order, the
Ninth Circuit stated that “[t]he denial of
appellant's habeas petition and request for a certificate
of appealability does not preclude him from pursuing his
claims in a properly filed civil action brought pursuant to
42 U.S.C. § 1983. See Skinner v. Switzer, 562
U.S. 521 (2011).”
months later, Gallegos filed this civil rights action. (ECF
No. 23 at 1.) He states this is not a case related to his
confinement in the California prison system. (Id. at
2.) Rather, “it is a direct appeal pertaining to DNA
testing on weapon only on controlling case.”
(Id. (citing Skinner v. Switzer, 562 U.S.
521 (2011).) He alleges that “courts failed to grant
motions and petitions for writ of habeas corpus on all levels
up to [the] 9th Circuit Court of Appeals.” As
defendants, he names approximately twenty individuals, who
consist primarily of judges and court personnel alleged to
have been in involved in the decisions to deny his motions
denying his motions and petitions, Gallegos asserts that the
defendants violated a litany of his constitutional rights
with their reckless, deliberately indifferent, malicious and
negligent conduct. As relief, he requests that the Court
grant DNA testing “on the weapon only” and to
“stop racial discrimination against Mexican nationals
at county of Madera courts and police [department].”
(ECF No. 23 at 5.) Gallegos also attempts bring state court
claims, including legal malpractice, against his appointed
attorneys from the law firm of Ciummo and Associates in
Madera, California. (Id. at 8.)
Legal Standard - Screening
28 U.S.C. § 1915(e)(2), the Court must conduct an
initial review of the Complaint to determine whether it
“state[s] a claim on which relief may be granted,
” is “frivolous or malicious, ” or
“seek[s] monetary relief against a defendant who is
immune from such relief.” If the Court determines that
the Complaint fails to state a claim, it must be dismissed.
Id. Leave to amend may be granted to the extent that
the deficiencies in the Complaint can be cured by amendment.
Cato v. United States, 70 F.3d 1103, 1106 (9th Cir.
1995). Courts deem a complaint “frivolous” when
it lacks “basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319 (1989). In ...