(PC) Kishor v. State of CA, et al, No. 2:2000cv01293 - Document 16 (E.D. Cal. 2020)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 12/14/2020 RECOMMENDING plaintiff's 14 motion to reopen this case be denied. Referred to Judge John A. Mendez; Objections to F&R due within 30 days. (Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHANDRA KISHOR, 12 Plaintiff, 13 14 No. 2:00-cv-1293 JAM DB P v. FINDINGS AND RECOMMENDATIONS STATE OF CALIFORNIA, et al., 15 Defendants. 16 Plaintiff is a state prisoner proceeding pro se. On December 10, 2020, he filed a 17 18 document entitled “Motion Renewing and Reopen with New Laws Evidence and Witness.” 19 Plaintiff filed this action on June 12, 2000. On September 11, 2000, the previously-assigned 20 magistrate judge found that plaintiff’s claims challenged the legality of his custody, rather than 21 the conditions of his confinement. Plaintiff was then given the opportunity to file a habeas corpus 22 petition in this action. When he did not do so, the case was dismissed without prejudice on 23 December 19, 2000. In this attempt to re-open his case, plaintiff is again raising challenges to his 1999 trial and 24 25 subsequent conviction. As plaintiff was informed previously, these sort of challenges must be 26 made in a petition for a writ of habeas corpus, not in a civil rights action under 42 U.S.C. § 1983. 27 See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). 28 //// 1 1 This court notes that petitioner did file a habeas petition in this court in June 2003 2 challenging the 2000 conviction. It was denied on the merits in 2007. See Kishor v. Attorney 3 General of CA, No. 03-cv-1219 LKK CMK P, 2007 WL 2904237 (E.D. Cal. Oct. 3, 2007), rep. 4 and reco. adopted, 2007 WL 4149327 (E.D. Cal. Nov. 19, 2007). Further, court records show that 5 plaintiff filed at least five subsequent challenges to his conviction. See Case No. 2:06-cv-1592 6 GEB KJM; Case No. 2:08-cv-2028 FCD JFM; Case No. 2:10-cv-3171 LKK KJN; Case No. 2:11- 7 cv-2148 EFB; Case No. 2:19-cv-1556 TLN DB. Each case was dismissed for plaintiff’s failure to 8 demonstrate that he obtained prior authorization from the Ninth Circuit Court of Appeals to file a 9 second or successive petition. See 28 U.S.C. § 2244(b); Felker v. Turpin, 518 U.S. 651, 656-57 10 (1996). The same is true in this case. Plaintiff makes no showing that he has obtained 11 authorization from the Court of Appeals to reopen this case and file a successive petition. 12 13 14 Accordingly, IT IS HEREBY RECOMMENDED that plaintiff’s motion to reopen this case (ECF No. 14) be denied. These findings and recommendations will be submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty days after 16 being served with these findings and recommendations, any party may file written objections with 17 the court and serve a copy on all parties. The document should be captioned “Objections to 18 Magistrate Judge's Findings and Recommendations.” Any response to the objections shall be 19 filed and served within seven days after service of the objections. The parties are advised that 20 failure to file objections within the specified time may result in waiver of the right to appeal the 21 district court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 22 Dated: December 14, 2020 23 24 DLB:9 DB/prisoner-civil rights/kish1293.reopen fr 25 26 27 28 2

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