Petition for Writ of Certiorari — Stevie J. Stevenson, Petitioner v. Craig Richman, Judge, Superior Court of California, Los Angeles County, et al.

Appendix

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7

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

APR 16 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

STEVIE J. STEVENSON,

Plaintiff-Appellant,

V.

CRAIG RICHMAN, Superior Court Judge,

Los Angeles County, in official capacity; et

al.,

No. 17-55889

D.C. No. 2:17-cv-03367-CJC-JC

Central District of California,

Los Angeles

[I)t1JI1

Defendants-Appellees.

Before:

SILVERMAN, PAEZ, and OWENS, Circuit Judges.

The district court certified that this appeal is not taken in good faith and

revoked appellant's in forma pauperis status. See 28 U.S.C. § 1915(a). On

September 14, 2017, the court ordered appellant to explain in writing why this

appeal should not be dismissed as frivolous. See 28 U.S.C. § 1915(e)(2) (court

shall dismiss case at any time, if court determines it is frivolous or malicious).

Upon a review of the record and response to the order to show cause, we

conclude this appeal is frivolous. We therefore deny appellant's motion to proceed

in forma pauperis (Docket Entry No. 2) and dismiss this appeal as frivolous,

pursuant to 28 U.S.C. § 1915(e)(2).

DISMISSED.

Appendix

N

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

AUG 282018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

STE VIE J. STEVENSON,

Plaintiff-Appellant,

V.

CRAIG RICHIIVIAN, Superior Court Judge,

Los Angeles County, in official capacity; et

al.,

N. 17-55889

D.C. No. 2:17-cv-03367-CJC-JC

Central District of California,

Los Angeles

[i)1I).1

Defendants-Appellees.

Before:

SILVERMAN, PAEZ, and OWENS, Circuit Judges

We treat Stevenson's petition for panel rehearing and petition for rehearing

n banc (Docket Entry No. 12) as a motion for reconsideration and motion for

reconsideration en banc.

Stevenson's motion for reconsideration is denied, and Stevenson's motion

for reconsideration en banc is denied on behalf of the court. See 9th Cir. R. 27-10;

9th Cir. Gen. Ord. 6.11.

Stevenson's other pending motions (Docket Entry Nos. 11 and 14) are

denied.

No further filings will be entertained in this closed case.

Appendix

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

JS-6

CASE NUMBER

INMATE # K16324

CV17-3367-CJC (JC)

Stevie J. Stevenson,

PLAINTIFF(S)

V.

ORDER RE REQUEST TO PROCEED WITHOUT

PREPAYMENT OF FILING FEES

Craig Richman, et al.,

DEFENDANT(S)

IT IS ORDERED that the Request to Proceed Without Prepayment of Filing Fees is hereby GRANTED.

IT IS FURTHER ORDERED that, in accordance with 28 U.S.C. § 1915, the prisoner-plaintiff owes the Court the

must be paid within thirty (30) days of

total filing fee of $350.00. An initial partial filing fee of $

the date this order is filed. Failure to remit the initial partial filing fee may result in dismissal of the case.

Thereafter, monthly payments shall be forwarded to the Court in accordance with 28 U.S.C. § 1915(b)(2).

United States Magistrate Judge

Date

IT IS RECOMMENDED that the Request to Proceed Without Prepayment of Filing Fees be DENIED for the

following reason(s):

Z Frivolous, malicious, or fails to state a claim

D Inadequate showing of indigency.

upon which relief may be granted.

Failure

to

authorize

disbursements

from

0

Seeks

monetary relief from a defendant immune

Z

prison trust account to pay filing fee.

from

such

relief.

0 Failure to provide certified copy of trust fund

Leave

to

amend

would be futile.

statement for the last six (6) months.

This denial may constitute a strike under the

0

District Court lacks jurisdiction.

'Three Strikes" provision governing the filing of

M Other

prisoner suits. See O'Neal v. Price, 531 F.3d

1146, 1153 (9th Cir. 2008).

Comments:

Seè'attàch.fnent

-

May 24, 2017

Date

.

-

Is! Jacqueline Chooljian

United States Magistrate Judge

IT IS ORDERED that the Request to Proceed Without Prepayment of Filing Fees is:

0 GRANTED. IT IS FURTHER ORDERED that, in accordance with 28 U.S.C. § 1915, the prisoner-plaintiff owes the

must be paid within thirty (30) days of

Court the total filing fee of $350.00. An initial partial filing fee of

t

in

dismissal

of the case. Thereafter, monthly

itial

partial

fil

ing

fee

may

res

ul

th

e

in

ure

to

remit

il

the date this order is filed. Fa

payments shall be forwarded to the Court in accordance with 28 U.S.C. § 1915(b)(2).

$_____________

DENIED, and this case is hereby DISMISSED.

0 DENIED with leave to amend within 30 days. Plaintiff may re-submit the IFP application and Complaint to this Court,

if submitted with the Certified Trust Account Statement and Disbursement Authorization. Plaintiff shall utilize the same

case number. if plaintiff fails to submit the required documents within 30 days, this case shall be DISMISSED.

May 26, 2017

Date

CV-73P (12/14)

6_

United States District, dge

ORDER RE REQUEST TO PROCEED WITHOUT PREPAYMENT OF FILING FEES

Attachment

Stevie J. Stevenson v. Craig Richman, et al.

No. CV 17-3367 CJC(JC)

Plaintiff attempts to assert multiple claims against (1) Los Angeles County Superior

Court Judge Craig Richman, based upon rulings Judge Richman made in post-judgment

proceedings pursuant to California Penal Code section 1054.9 ("Post-Judgment Proceedings);'

Los Angeles County Deputy District Attorney (DDA) Corene Locke-Noble, based upon her

actions/omissions while acting as a prosecutor in connection the Post-Judgment Proceedings;

Los Angeles County District Attorney Jackie Lacey, based upon her failure to address and.

remedy matters relating to the actions/omissions of her suprvisee, DDA Locke-Noble, in

connection with the Post-Judgment Proceedings; (4) appointed defense counsel James Bisnow,

who represented plaintiff in the Post-Judgment Proceedings; and (5) Zeke Perlo, based upon his

failure to address/remedy matters relating to the actions/omissions of his supervisee, James

Bisnow, in connection with Bisnow's representation of plaintiff in the Post-Judgment

Proceedings.

First, given the nature of plaintiff's allegations against them, Judge Richman, DDA

Locke-Noble, and DA Lacey are absolutely immune from suit to the extent plaintiff seeks

damages against them in their personal capacities. See, e.g., Mireles v. Waco, 502 U.S. 9, 9-10

{1 99 1) (state court judges absolutely immune from liability for Section 1983 damages for acts

performed in their judicial capacity) (citations omitted); Imbler v. Pachtman, 424 U.S. 409, 430

(1976) (prosecutor entitled to absolute immunity from a Section 1983 action for damages when

he/she performs function "intimately associated with the judicial phase of the criminal process.");

Van de Kamp v. Goldstein, 555 U.S. 335, 345 (2009) (trial prosecutor and supervisory

prosecutor absolutely immune from suit seeking damages based upon failure to find and turn

over impeachment material).'

'California Penal Code section 1054.9 authorizes state courts to order that California

defemiants who ) have been sentenced t death life without the possibility fl) are

prosecuting a post-conviction writ of habeas corpus; and (iii) show that good faith efforts to

obtain discovery materials from trial counsel were made and were unsuccessful, be provided

reasonable access to materials in the possession of the prosecution and law enforcement

authorities to which the same defendant would have been entitled at the time of trial (including

material exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963)). Cal. Penal Code

§ 1054.9; Barnett v. Superior Court, 50 Cal. 4th 890, 901 (2010), cert. denied, 563 U.S. 939

(2011); hire Steele, 32 Cal. 4th 682, 695 (2004).

'Contrary to plaintiff's suggestion, there is no authority for the proposition that California

Penal Code section 141(c) which subjects prosecutors to criminal liability for intentionally, and

in bad faith withholding relevant exculpatory material knowing that it is relevant and material to

the outcome of the case, with the specific intent that it it be concealed or destroyed deprives

prosecutors of absolute immunity from liability under Section 1983 in the above-specified

circumstances. Cf Rodriguez v. Kwok, 2014 WL 889570, *5 (N.D. Cal. Mar. 3, 2014) (holding,

as to prior/then-existing version of Cal. Penal Code § 141, that statute does not create private

right of action and that violation thereof cannot serve as basis for civil liability).

-

-

Second, to the extent plaintiff sues defendants Judge Richman, DDA Locke-Noble, and

DA Lacey in their official capacities, such defendants in light of the nature of plaintiffs

allegations are the equivalent of the state itself, which is also immune from a suit for damages

under the Eleventh Amendment. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 64-66,

71 (1989) (state officials sued in their official capacities are not "persons" subject to civil rights

suits under 42 U.S.C. § 1983); Bair v. Krug, 853 F.2d 672, 675 (9th Cir. 1988) (Eleventh

Amendment bars actions against state officers sued in their official capacities for past alleged

misconduct involving complainant's federally protected rights where nature of relief sought is

retroactive, i.e., money damages); Greater L.A. Council on Deafness, Inc. v. Zolin, 812 F.2d

1103, 1110 (9th Cir. 1987) ("[A] suit against the Superior Court is a suit against the State, barred

by the eleventh amendment"); Pitts v. County of Kern, 17 Cal. 4th 340, 359-60 (1998) (district

attorneys in California fulfill dual roles of county and state official; when district attorney acts as

prosecutor, he does so on behalf of state and absolute immunity applies).'

-

-

Third, to the extent plaintiff; other than through the vehicle of a federal petition for writ

of habeas corpus (if applicable), challenges Judge Richman's application of California Penal

Code section 1054.9 or his rulings in the Post-Judgment Proceedings e.g., to deny plaintiffs

motion for discovery, to deny his request to proceed/file documents pro se such claims are

barred by the Rooker-Feldman doctrine because they constitute de facto appeals of such rulings

and the Court lacks jurisdiction to consider them. See Henrichs v. Valley View Development,

474 F.3d 609, 613 (9th Cir.) (under Rooker-Feldman doctrine "federal district courts lack

jurisdiction to exercise appellate review over final state court judgments") (citing, inter alia,

Rookery. Fidelity Trust Co. 263 U.S. 413, 415-16 (1923); District of Columbia Court of

Appeals v. Feldman, 460 U.S. 462, 482-86 (1983)), cert. denied, 552 U.S. 1037 (2007); Cooper

v. Ramos, 704 F.3d 772, 777-83 (9th Cir. 2012) (plaintiffs challenge to state court denial of

request to obtain additional DNA testing pursuant to state statute including claim that plaintiff

was thereby deprived of his liberty and property interests without due process of law barred by

Rooker-Feldman doctrine); Rhodes v. Gordon, 616 Fed. Appx. 358 (9th Cir. 2015) (affirming

district court's determination that Rooker-Feldman doctrine barred state prisoner's pro se civil

rights complaint which essentially challenged California state trial court's refusal to grant

California Penal Code section 1054-9~Post7IZOIIViCti0n. discovery. motion and alleged. the existence

of broad conspiracy between state trial judge, prosecutors, public defenders, and others), cert.

denied, 137 S. Ct. 202 (2016).

-

-

-

-

Fourth, to the extent petitioner sues Judge Richman based upon the denial of plaintiffs

request to proceedpro se in the Post-Conviction Proceedings, plaintiff cannot state a Section

1983 claim. While a criminal defendant has a constitutional right under the Sixth Amendment to

proceed to trial without counsel when he voluntarily and intelligently elects to do so, Faretta v.

California, 422 U.S. 806, 807 (1975), there is no federal constitutional right to self-representation

in a post-conviction proceeding. See Martinez v. Court of Appeal of California, Fourth

Appellate Distr., 528 U.S. 152, 163 (2000) (Neither holding nor reasoning in Faretta requires

'Absolute immunity is not a bar to injunctive or declaratory relief. See Pulliam v. Allen,

466 U.S. 522, 541-42 (1984).

2

California to "recognize a constitutional right to self-representation on direct appeal from a

criminal conviction"; "In requiring Martinez, under these circumstances, to accept against his

will a state-appointed attorney, the California courts have not deprived him of a constitutional

right."); In re Barnet, 31 Cal. 4th 466, 475 (2003) ("Although the United States Supreme Court

has not ruled on this matter specifically, it is logical to conclude that if there is no federal

constitutional right to self-representation in a state appeal as of right. then there is no such

constitutional right in state collateral proceedings. Not only does the Sixth Amendment right to

self-representation at trial clearly not apply, but the autonomy interests that survive a judgment of

conviction surely are no greater once the judgment is affirmed on appeal and the inmate is

relegated to the civil remedy of seeking collaterial relief') (internal citation to Martinez omitted);

cf. Fletcher v. Beard, 2016 WL 2866431, *3 (RD. Pa. May 16, 2016) (no federal constitutional

right to self-representation in federal habeas proceeding federal court has discretion to allow

petitioner to proceed pro se or to insist that he accept representation).

.

.

Fifth, plaintiff's claims against defense attorney Bisnow and his supervisor Perlo fail at

least because such defendants were private individuals not subject to liability under 42 U.S.C.

§ 1983 which requires actions under the color of state law. Such defendants cannot be deemed to

have acted under color of law merely by virtue of the representation of plaintiff. See Polk

County v. Dodson, 454 U.S. 312, 319 n.9 (198 1) (although lawyers are generally licensed by

states, they are not officials of government simply because they are lawyers) (citation omitted);

id. at 325 (public defender does not act under color of state law when performing a lawyer's

traditional functions as counsel to a defendant in criminal proceedings); see also Miranda v.

Clark County, Nevada, 319 F.3d 465, 468 (9th Cir.) (discussing same), cert. denied, 540 U.S. 814

(2003).

Finally, notwithstanding the manner in which plaintiff has framed his claims, he

otherwise fails to state and cannot plausibly state a viable federal constitutional claim. The

gravamen of his Complaint is that the defendants have violated California Penal Code section

1054.9 by depriving him of the post-conviction discovery such statute allegedly entitles him to

receive. Such alleged failure to comply with state law does not violate the United States

Constitution otherwise giv

federal constitutional claim. See,

Barnes y.

Hennepin County Attorney's Office, 2008 WL 3263021, *5*6 (D. Minn. Aug. 7, 2008) (no due

process right to post-conviction access to witnesses statements from county attorney's office),

aff'd, 364 Fed. Appx. 301 (8th Cir. 2010); Nwobi v. Kelly, 2006 WL 2882572, at *3 & n.3

(E.D.N.Y. Oct. 6, 2006) (state inmate has no constitutionally protected interest in inspecting

-

'While a private individual may be liable under Section 1983 if he conspired or entered

joint action with a state actor, Franklin v. Fox, 312 F.3d 423, 441 (2002), conclusory allegations

such as those presented here, are insufficient to support a Section 1983 claim. See Schucker v.

Rockwood, 846 F.2d 1202, 1205 (9th Cir. 19 88) (conclusory allegations of conspiracy between

judge and law firm insufficient to support Section 1983 claim), cert. denied, 488 U.S. 995

(1988); see also Bell Atlantic Corp. v. Twombly, 559 U.S. 544, 556-57 (2007) (claim based upon

illicit agreement must allege enough factual matter, talcn as true, to suggest that agreement was

made).

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evidence after his criminal trial; post-trial access to evidence "traditionally pursued" through

state freedom of information laws); cL Houchins v. KOED,jpc, 438 U.S. 1, 14 ("The

Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act."). While

California Penal Code section 1054.9 promotes informal, timely discovery between parties prior

to seeking court intervention relative to post-conviction requests for discovery in the specified

types of cases, it imposes no statutory or constitutional requirement that prosecuting authorities

provide post-conviction discovery to criminal defendants absent a court order. See Cal. Penal

Code § 1054.9. To the extent plaintiff suggests that the prosecutor had an independent federal

constitutional due process obligation under Brady to disclose material exculpatory evidence to

him, he is incorrect as prosecutors have no such federal constitutional obligation to a criminal

defendant where, as here, he has already been convicted and the case is final on direct appeal.

See District Attorney's Office Third Judicial District v. Osborne, 557 U.S. 52, 68 (2009);

Runningeagle v. Ryan, 686 F.3d 758, 772 n.6 (9th Cir. 2012) (citing Osborne), cert. denied, 133

S. Ct. 2766 (2013).

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