United States District Court, D. Nevada
ROY D. MORAGA, Petitioner,
ROBERT LAGRAND, et al., Respondents.
LARRY R. HICKS, District Judge.
This habeas matter comes before the Court on petitioner's application (#1) to proceed in forma pauperis and for initial review under Rule 4 of the Rules Governing Section 2254 Cases. The pauper application will be granted on the showing made.
Turning to initial review, the petition clearly is successive on its face and further potentially may not be cognizable in habeas.
Petitioner Roy Moraga was convicted on July 7, 1990, pursuant to a jury verdict, of two counts of burglary and two counts of sexual assault, and he was adjudicated as a habitual criminal. After a remand and an appeal from an amended judgment of conviction, the Supreme Court of Nevada affirmed in an October 4, 1995, order. Petitioner filed a state post-conviction petition on or about February 20, 1996, and that proceeding (along with another coterminous state court proceeding) concluded following a state post-conviction appeal with the issuance of the remittitur on May 18, 1999. Petitioner filed a timely federal petition on September 14, 1999, under No. 3:99-cv-00507-DWH-RAM that ultimately was denied on the merits on December 3, 2008, under No. 3:03-cv-00220-LRH-RAM. The Ninth Circuit affirmed on February 23, 2011, and the Supreme Court denied certiorari review on October 3, 2011. Two years later, on December 20, 2013, the Ninth Circuit denied petitioner's application to pursue a second or successive federal habeas petition in No. 13-74048.
In the present petition, Moraga alleges that he is actually innocent based on the bare assertion that updated DNA testing - will - exonerate him. That is, he does not rely upon DNA testing that already has been performed and that, further, exonerates him as a matter of established, non-speculative fact. Petitioner seeks a federal court order that "the new (STR) DNA test samples be tested under the advanced DNA technology that can remove Moraga as the perpetrator against [the victim] and exonerate me of criminal wrongdoing and release me from custody."
Moraga presented substantially the same petition that he now presents to this Court to the Ninth Circuit in No. 13-74048 with an application to file a second or successive petition. The Court of Appeals denied the application.
Under 28 U.S.C. § 2244(b)(3), before a second or successive petition is filed in the federal district court, the petitioner must move in the court of appeals for an order authorizing the district court to consider the petition. A federal district court does not have jurisdiction to entertain a successive petition absent such permission. A petition filed after a prior petition was dismissed on the merits constitutes a successive petition. See, e.g., Henderson v. Lampert, 396 F.3d 1049, 1052-53 (9th Cir. 2005).
In the present petition, petitioner seeks to challenge the same judgment of conviction that he previously challenged in this Court in Case No. 3:03-cv-00220. That petition was dismissed on the merits. The present petition thus constitutes a successive petition. Even if the Court assumes arguendo that the petition is cognizable, the Ninth Circuit's denial of petitioner's application to pursue a successive petition as to substantially the same petition arguably would appear to be law of the case. Petitioner should not expect to get a different result simply by filing substantially the same petition instead in the district court. Petitioner must obtain permission from the Court of Appeals to pursue a successive petition, which he clearly has not obtained in this case.
It further is subject to substantial question whether the petition is cognizable in habeas. The Supreme Court has held that an action to secure DNA testing is cognizable in a civil rights action, subject then to the plaintiff being able to actually establish a procedural due process violation. See Skinner v. Switzer, 131 S.Ct. 1289, 1298-1300 (2011). Language in Skinner arguably suggests that the relief sought perhaps may be available, upon an adequate showing, only in a federal civil rights action. Petitioner's claims in particular of alleged error in state post-conviction proceedings directed to his request for DNA testing indisputably are not cognizable in a federal habeas corpus. See Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 1989). The Court need not tarry over such issues, however, because the petition, to the extent cognizable in habeas, clearly is a successive petition.
The present petition therefore will be dismissed without prejudice as a successive petition. Further proceedings herein in advance of entry of judgment would be both futile and an imprudent application of limited judicial resources. Petitioner simply is frivolously pursuing a successive petition after the Court of Appeals already has denied his application to file a second or successive petition seeking to pursue substantially the same tendered petition.
IT IS THEREFORE ORDERED that petitioner's application (#1) to proceed in forma pauperis is GRANTED and that petitioner will not be required to pay the filing fee herein.
IT IS FURTHER ORDERED that the Clerk of Court shall file the petition and that the petition is DISMISSED without prejudice as a successive petition.
IT IS FURTHER ORDERED that the Clerk shall file the motion for appointment of counsel submitted with the petition, that the motion is denied on a finding that the interests of justice do not require the appointment of counsel on the clearly successive petition, and that the Clerk shall reflect the denial of the motion in a manner consistent with the Clerk's current practice for such docket entries.
IT IS FURTHER ORDERED that, pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Clerk shall informally electronically serve the state attorney general, that the Clerk shall direct regenerated notices of electronic filing of the prior filings herein to the attorney general, and that counsel shall file a notice of appearance within twenty-one (21) days of entry of this ...