United States District Court, D. Arizona
Demetrius A. Wilson, Petitioner,
Charles L. Ryan, et al., Respondents.
JAMES A. TEILBORG, Senior District Judge.
Pending before the Court is Petitioner's motion to convert his habeas petition to a 1983 civil rights action. (Doc. 14). This motion will be denied.
Petitioner was granted In Forma Pauperis status solely to proceed in this habeas case. If Petitioner chooses to file a civil rights complaint, he must open a new case by filling out and filing the court-approved form for filing a civil rights complaint by a prisoner. At the same time, Petitioner must either pay the $400 filing and administrative fees or fill out and file a court-approved form for filing an Application to Proceed In Forma Pauperis (Non-Habeas) and a certified copy of his trust account statement for the six months preceding the filing of the Complaint. 28 U.S.C. § 1915(a)(2). If a prisoner is granted In Forma Pauperis status in a civil rights action, the prisoner must pay the $350.00 filing fee incrementally as set forth in 28 U.S.C. § 1915(b)(1). Thus, if Petitioner wishes to file a civil rights complaint, he must file a new action.
In his motion, Petitioner also states that he wants to "drop" his habeas petition. Petitioner is cautioned a section 1983 civil rights complaint is not an appropriate vehicle to challenge convictions; rather "[h]abeas corpus proceedings are the proper mechanism for a prisoner to challenge the legality or duration' of confinement." Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (internal citations omitted). Accordingly, Plaintiff may not seek to have his convictions reversed in a future 42 U.S.C. § 1983 action. Moreover, a prisoner's claim for damages cannot be brought under § 1983 if "a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence, " unless the prisoner demonstrates that the conviction or sentence has previously been reversed, expunged, or otherwise invalidated. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
Further, under 28 U.S.C. § 2244, a petitioner may not file a second or successive § 2254 petition in the district court unless the petitioner has obtained a certification from the Ninth Circuit Court of Appeals authorizing the district court to consider the second or subsequent § 2254 petition. A habeas petition is "second or successive' if it raises claims that were or could have been adjudicated on their merits in an earlier petition." Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001) (per curiam) (citations omitted).
Given all of the above consequences of "dropping" the habeas petition, the Court will deny that request, without prejudice. If Petitioner considers all of the above and still wishes to voluntarily dismiss his habeas Petition, he may file a motion to dismiss. However, as indicated above, this case will not be converted into a civil rights complaint in any event.
Finally, Petitioner has also moved for appointment of counsel. (Doc. 16). Generally, "[t]here is no constitutional right to counsel on habeas." Bonin v. Vasquez, 999 F.2d 425 (9th Cir. 1993). Moreover, in this case, Petitioner is seeking counsel to assist with the civil rights complaint he seeks to convert this case into. Because this Court will not convert this case to a civil rights complaint, the request for counsel to prosecute this as a civil rights complaint is moot.
Based on the foregoing,
IT IS ORDERED withdrawing the reference to the Magistrate Judge for Docs. 14 and 16.
IT IS FURTHER ORDERED that the motion to convert this case to a civil rights complaint and to "drop" the habeas petition (Doc. 14) is denied.
IT IS FURTHER ORDERED that the motion for appointment of counsel (Doc. 16) is denied.
IT IS FINALLY ORDERED that the Clerk of Court must mail Petitioner a court-approved form for filing a civil rights complaint by a prisoner and a court-approved form for filing an ...