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Gallegos v. Licalsi

United States District Court, E.D. California

March 8, 2017

ERNEST J LICALSI, et al., Defendants.


         Plaintiff, 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.[1]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. § 1915(e)(2).[2]

         A. Background

         Gallegos 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.[3] He is presently incarcerated at the Pleasant Valley State Prison in Coalinga, California.

         Gallegos 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).

         On May 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. (Id.)

         Gallegos 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 (b)(1).” (Id.)

         Separately, 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.)

         On June 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.)

         Gallegos 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.)

         A 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).

         On 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).”

         Two 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 and petitions.

         By 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.)

         B. Legal Standard - Screening

         Under 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 ...

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