Dunsmore v. Gore

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 DARRYL DUNSMORE, Case No. 3:20-cv-1773-CAB-AGS 12 Petitioner, ORDER: 13 v. 1) GRANTING MOTION TO 14 GEORGE JAIME, Warden, DISMISS PETITION FOR WRIT 15 Respondent. OF HABEAS CORPUS [ECF No. 22]; [16] 17 2) DENYING MOTION FOR CIVIL CONTMEPT [ECF No. 7]; [18] 19 3) DENYING MOTION FOR ADA ACCESS [ECF No. 9]; [20] 21 4) DENYING MOTION FOR ACCOMODATIONS [ECF No. [22] 20]; [23] 5) DENYING MOTIONS TO [24] AMEND PETITION [ECF Nos. 25, 25 31]; [26] 6) DENYING MOTION FOR 27 DEFAULT JUDGMENT [ECF No. 27]; [28] 1 7D)E GNRYAINNGTI INNG P IANR PTA MRTO TAINODN [2] FOR JUDICIAL NOTICE [ECF 3 No. 33]; [4] 8) DENYING MOTION FOR 5 EXTENSION OF TIME [ECF No. 35]; [6] 7 9) DENYING MOTION FOR STAY [ECF No. 37]; and [8] 9 10) DENYING CERTIFICATE OF APPEALABILITY [11] 12 I. INTRODUCTION 13 Petitioner Darryl Dunsmore (“Dunsmore” or “Petitioner”) is a state prisoner, 14 currently in custody at the San Diego County jail following a resentencing proceeding. He 15 is proceeding pro se with a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 16 (“Petition” or “Pet.”). (See Pet., ECF No. 1; Opp. to Mot. to Dismiss, ECF No. 29 at 8.) 17 He has also filed numerous other motions. The Court has read and considered the Petition, 18 [ECF No. 1], the Motion to Dismiss and Memorandum of Points and Authorities in Support 19 of the Motion to Dismiss [ECF Nos. 22, 22-1], the Opposition to the Motion to Dismiss 20 [ECF No. 27], the lodgments and other documents filed in this case, and the legal 21 arguments presented by both parties. For the reasons discussed below, the Court GRANTS 22 the Motion to Dismiss. The Court also GRANTS in part and DENIES in part Dunsmore’s 23 Motion for Judicial Notice and DENIES the remaining motions filed by Dunsmore. 24 Finally, the Court DENIES a Certificate of Appealability. 25 II. FACTUAL BACKGROUND AND PROCEDURAL BACKGROUND 26 In June of 2010, Dunsmore was convicted in San Diego Superior Court of attempted 27 voluntary manslaughter, assault with a deadly weapon and enhancements in San Diego 28 Superior Court case no. SCS 215653. (See Dunsmore v. Paramo, et al., S.D. Cal. case no. 1 3:13-cv-01193-GPC-PCL, ECF No. 28-1at 83-87].) Dunsmore appealed, and the 2 California Court of Appeal affirmed his conviction, but remanded the case for resentencing 3 to impose mandatory fines and fees. (Id. at ECF No. 28-20, 28-23–28-24, 28-28; People 4 v. Dunsmore, 2019 WL 4941363 , at*2 (Cal. Ct. App. Oct. 8, 2019.) Dunsmore filed a 5 petition for review challenging his conviction in the California Supreme Court, which was 6 denied. (Id. at ECF No. 28-15–28-16.) 7 Dunsmore filed a Petition for Writ of Habeas Corpus challenging his conviction in 8 case no. SCS 215653 in this Court on May 17, 2013, which was given case no. 3:13-cv9 01193-GPC-PCL. (Id. at ECF No. 1.) While that petition was pending, Dunsmore filed 10 another habeas corpus petition in this Court challenging his conviction in case no. SCS 11 215653. (See Dunsmore v. Beard, S.D. Cal. case no. 3:15-01428-LAB-NLS.) The Court 12 ordered that the petition in case no. 3:15-01428-LAB-NLS be filed as a motion to amend 13 the petition in case no. 3:13-cv-01193-GPC-PCL pursuant to Woods v. Carey, 525 F.3d 14 886, 890 (9th Cir. 2008). (See id. ECF No. 2.) Dunsmore appealed that Order to the Ninth 15 Circuit Court of Appeal, which denied a certificate of appealability. (See ECF No. 12.) 16 Subsequently, in case no. 3:13-cv-01193-GPC-PCL, the Court denied the motion to amend 17 and denied the petition on the merits. (See Dunsmore v. Paramo, et al., S.D. Cal. case no. 18 3:13-cv-01193-GPC-PCL, ECF No. 115.) Dunsmore appealed the denial, and the Ninth 19 Circuit denied a certificate of appealability. (Id. at ECF Nos. 115, 131.) 20 Dunsmore next filed a petition for writ of habeas corpus challenging his conviction 21 in San Diego Superior Court case no. SCS 215653 in the United States District Court for 22 the Eastern District of California, which was transferred to this Court and given case no. 23 3:18-00172-H-PCL. The Court dismissed the case as successive to 3:13-01193-GPC-PCL. 24 (See Dunsmore v. Martel, S.D. Cal. case no. 3:18-00172-H-PCL [ECF No. 7].) Dunsmore 25 filed a motion for reconsideration, which was denied. (Id. at ECF No. 9-10.) Meanwhile, 26 sometime in 2018, Dunsmore was resentenced following the state appellate court’s remand 27 on direct appeal. See Dunsmore v. Martel, 2019 WL 4941363 , at *1-2 (Cal. Ct. App. Oct. 28 8, 2019). Dunsmore appealed his resentencing and the state appellate court concluded 1 there were errors in the calculation of fees, fines and enhancements at the resentencing. Id. 2 It remanded the case for resentencing a second time. Id. 3 In February of 2020, Dunsmore filed a habeas corpus petition pursuant to 28 U.S.C. 4 § 2254 in this Court which was given case no. 3:20-00310-MMA-MSB. (See Dunsmore 5 v. Gore, S.D. Cal. case no. 3:20-00310-MMA-MSB, ECF No. 1.) In that case, Dunsmore 6 sought to challenge his conviction in case no SCS 215653 and the state appellate court’s 7 second decision to remand his case for resentencing. (Id. at 1.) The Court dismissed this 8 case on abstension grounds pursuant to Younger v. Harris, 401 U.S. 37, 41 (1971).1 (See [9] id. at ECF No. 2.) Dunsmore appealed the dismissal to the Ninth Circuit, and at the time 10 of the writing of this Order, a motion to proceed in forma pauperis was pending in that 11 case. (See Dunsmore v. Gore, No. 20-56223 (9th Cir. Feb. 18, 2020, ECF No. 3.) 12 On May 5, 2020, Dunsmore filed an application to file a second or successive 13 petition in the Ninth Circuit. (See Dunsmore v. Eldridge, No. 20-71281 (9th Cir. May 5, 14 2020). The Ninth Circuit concluded that the application was unnecessary because the 15 California Court of Appeal had remanded Dunsmore’s case for resentencing and thus 16 Dunsmore was no longer in custody pursuant to that original judgment. Dunsmore was 17 told that if he wished to challenge the new judgment which would be entered following his 18 resentencing, he was to “file a petition for writ of habeas corpus pursuant to 28 U.S.C. 19 § 2254 in the District Court “that complies with the procedural requirements of 28 U.S.C. 20 §§ 2244(d) and 2254.” (Id. at 2.) 21 On July 15, 2020, Dunsmore was resentenced in state court for a second time 22 following the state appellate court’s second remand. (Lodgment No. 21, ECF No. 23-21 23 at 126–27.) Two days later, Dunsmore filed another petition for writ of habeas corpus 24 pursuant to 28 U.S.C. § 2254 in this Court which was given case no. 3:20-01378-JLS25 AHG. (See Dunsmore v. Unknown, S.D. Cal. case no. 3:20-01378-JLS-AHG.) The Court [27] 28 1 Younger held that federal courts may not interfere with ongoing state criminal proceedings absent 1 dismissed the case as successive. (Id. at ECF No. 3.) Dunsmore then filed a motion for 2 reconsideration, and while that motion was pending, appealed the dismissal of his case. 3 (Id. at ECF Nos. 5–7.) The Ninth Circuit dismissed his appeal for lack of jurisdiction. (Id. 4 at ECF No. 15.) This Court granted in part and denied in part Dunsmore’s motion for 5 reconsideration, finding that challenges to his conviction in San Diego Superior Court case 6 no. SCS 215653 were successive and dismissing his claims related to his second 7 resentencing on Younger abstention grounds because it appeared that resentencing 8 proceedings were still ongoing. (Id. at 4.) Dunsmore appealed this dismissal and the appeal 9 is currently pending in the Ninth Circuit. See Dunsmore v. Unknown, No. 20-56228 (9th 10 Cir. Nov. 20, 2020). 11 On August 4, 2020, Dunsmore appealed his July 15, 2020 resentencing. (See 12 California Courts, Appellate Court Information website, https://appellatecases.courtinfo.c 13 a.gov/search/case/dockets.cfm?dist=41&doc_id=2323902&doc_no=D077762&request_t 14 oken=NiIwLSEmTkw8WzAtSSFdTE9IIDw6UkxbJCMuWzxTUCAgCg%3D%3D (last 15 visited March 8, 2021). The opening brief was filed on December 28, 2020, and 16 Respondent’s brief was filed on March 1, 2020. (Id.) That appeal is currently ongoing. 17 (Id.) 18 Dunsmore filed a new petition for writ of habeas corpus pursuant to 28 U.S.C. 19 § 2254 in this Court on August 5, 2020, which was given case no. 3:20-01518-BAS-KSC. 20 (See Dunsmore v. Eldridge, et al., S.D. Cal. case no. 3:20-01518-BAS-KSC.) That case 21 was dismissed as successive because Dunsmore was seeking to challenge his conviction in 22 case no. SCS 215653. (Id. at ECF No. 4.) Dunsmore appealed that decision and the appeal 23 is currently pending in the Ninth Circuit. (See Dunsmore v. Eldridge, et al., No. 20-56209 24 (9th Cir. Nov. 2, 2020).) 25 On August 12, 2020, over two years after this Court had denied Dunsmore’s motion 26 for reconsideration in S.D. Cal. case no. 3:18-00172-H-PCL, Dunsmore appealed the 27 Court’s dismissal of his petition as successive; the Ninth Circuit dismissed the appeal for 28 lack of jurisdiction. See Order in Dunsmore v. Martel, No. 20-55833 (9th Cir. Sept. 18, 1 2020) [ECF No. 6].) In November of 2020, Dunsmore filed another motion for 2 reconsideration in S.D. Cal. case no. 3:18-00172-H-PCL, which was denied. (Dunsmore 3 v. Martel, S.D. Cal. Case no. 3:18-00172-H-PCL, ECF No. 19–20.) Dunsmore appealed 4 to the Ninth Circuit and that appeal is currently pending. (See Dunsmore v. Martel, No. 5 21-55107 (9th Cir. Feb. 9, 2021).) 6 On September 8, 2020, Dunsmore filed a petition for writ of habeas corpus pursuant 7 to 28 U.S.C. § 2254 in this case, 3:20-01773-CAB-AGS, identifying San Diego Superior 8 Court case no. SCS 179057 as the conviction he sought to challenge. (Pet., ECF No. 1 at 9 1.) Respondent filed a motion to dismiss on January 14, 2021, arguing the Petition should 10 be dismissed on abstention grounds pursuant to Younger and that his other claims are not 11 cognizable on federal habeas corpus review. (ECF No. 22, 22-1.) Dunsmore filed an 12 Opposition to the motion on January 25, 2021. (ECF No. 29.) He has also filed various 13 motions. (See ECF Nos. 7, 9, 20, 25, 27, 31, 33, 35, 37.) 14 On October 26, 2020, Dunsmore filed an application to file a second or successive 15 petition in the Ninth Circuit seeking to challenge his conviction in San Diego Superior 16 Court case no. SCS 215653. (See Dunsmore v. Eldridge, No. 20-73179 (9th Cir. Oct. 26, 17 2020), ECF Nos. 1, 3.) The Ninth Circuit noted that Dunsmore was already pursuing a 18 challenge to his conviction in San Diego Superior Court case no. SCS 21563 in this case 19 and directed that the application for leave to file a second or successive petition be filed as 20 a motion to amend in this case. (Id.; ECF No. 25.) 2 21 / / / [23] 24 2 Dunsmore has also filed two other petitions for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court, Dunsmore v. Gore, et al., 3:20-02021-LAB-RBB, which was dismissed as duplicative of case 25 no. 3:20-01518-BAS-KSC, and Dunsmore v. Gore, et al., 3:20-02120-CAB-NLS, which was dismissed as to his conviction in case no. SCS 179057 because he was pursuing a challenge to that conviction in 26 this case and on Younger abstention grounds as to his challenge to his conviction in San Diego Superior Court case no. SCS 215653. (See Order in Dunsmore v. Gore, et al., 3:20-02021-LAB-RBB [ECF No. [27] 3] and Order in Dunsmore v. Gore, et al., S.D. Cal. case no. 3:20-02120-CAB-NLS [ECF No. 3].) 28 Dunsmore has appealed the dismissal of his case in case no. 3:20-02120-CAB-NLS and that appeal is 1 III. ANALYSIS 2 A. Grounds in the Petition 3 Although Dunsmore identifies San Diego Superior case no. SCS 179057 as the 4 conviction he seeks to challenge, (Pet., ECF No. 1 at 1), the Ninth Circuit construed his 5 Petition as seeking to challenge his July 15, 2020 sentence in San Diego Superior Court 6 case no. SCS 215653. (See ECF No. 25-2.) Dunsmore raises two grounds in his Petition. 7 In ground one, he claims a due process violation and states as follows: 8 I am appellant counsel by way of Wende brief. I have filed notices per CRC 8.155(d) concerning omission of the record. Petitioner has filed motions [9] complaining that said appeal record under Rule 8.155 is incorrect[,] that 10 appropriate record is CRC 8.320 [and] that no stipulation has been submitted by the parties per CRC 8.320(f) for limited record. The Clerk[,] the supervisor [11] and the Court have failed refused to respond to said motion concerning 12 omission from the record according to CRC8.336(g) and (b) denying me due process in the instant matter to meaningful review in case D076678. [13] 14 (ECF No. 1 at 6.) 15 Dunsmore describes his second ground for relief a “obstruction of meaningful 16 access” and states as follows: 17 The Superior Court is denying me meaningful access to court by refusing to grant me pro per status[,] denying me the tools necessary to access [18] the court despite knowing I’m appellate counsel in case D076678 by way of 19 Wende brief in or to deprive me of further relief in case no. 215653 and to willfully injure my collateral attack in order to keep me wrongfully [20] incarcerated [and] has consistently manipulated the rule of law in this 21 endeavor[,] refused appellate orders on remand[,] abused its discretion[,] been bias[ed] and prejudice[d,] has refused to order SDCJ to provide legal access[,] [22] responds to writs [and] motions with erroneous application of law and 23 numerous other due process violations[,] has established policy to deprive me of my rights and the law in violation of the 1972 Gilmore v. Lynch injunction [24] order to provide meaningful access to state prisoner[s]. [25] 26 (Id. at 7.) 27 Dunsmore’s claims are not easy to understand, but it appears he is making two 28 attacks, one on his 2004 conviction in San Diego Superior Court case no. SCS 179057, 1 which was used to enhance his sentence in San Diego Superior Court case no. SCS 215653, 2 and one on his 2010 conviction and sentence in San Diego Superior Court case no. SCS 3 215653. 4 1. Claims Related to San Diego Superior Court case no. SCS 179057 5 In 2004, Dunsmore pleaded guilty to attempted criminal threats in San Diego 6 Superior Court case no. 179057. See People v. Dunsmore, No. D076678, 2020 WL 7 1846678 (Cal. Ct. App. April 13, 2020). When Dunsmore was convicted in San Diego 8 Superior Court case no. SCS 215653 in 2010, that conviction was used to enhance his 9 sentence. (See People v. Dunsmore, No. D076678, 2020 WL 1846678 (Cal. Ct. App. April 10 13, 2020).) In 2019, he made a motion to withdraw his guilty plea in case no. SCS 179057; 11 the superior court denied the motion. (Id.) Dunsmore appealed the denial and the 12 California Court of Appeal affirmed. (Id.) A petition for rehearing was denied by the state 13 appellate court and a petition for review was denied by the California Supreme Court. (See 14 California Courts website, https://appellatecases.courtinfo.ca.gov/search/case/dockets.cf 15 m?dist=41&doc_id=2300646&doc_no=D076678&request_token=NiIwLSEmTkw8WzB 16 JSCJdUEJIMEQ6UkxbJCM%2BXz1RMCAgCg%3D%3D (last visited on March 8, 17 2021.) 18 A petitioner may not challenge more than one conviction in a single habeas corpus 19 petition brought pursuant to 28 U.S.C. § 2254 . Rule 2(e), 28 U.S.C. foll. § 2254. 20 Moreover, to the extent Dunsmore seeks to challenge his conviction in San Diego Superior 21 Court case no. SCS 179057, the challenge is precluded by Lackawanna County District 22 Attorney v. Coss, 532 U.S. 394 (2001). In Lackawanna, the Supreme Court stated: 23 [W]e hold that once a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those [24] remedies while they were available (or because the defendant did so 25 unsuccessfully), the conviction may be regarded as conclusively valid. See Daniels, post, at 382, 121 S.Ct. 1578 . If that conviction is later used to [26] enhance a criminal sentence, the defendant generally may not challenge the [27] 28 / / / 1 ecnohnavniccteiodn s ewnatesn ucnec tohnrostuitguht iao npaeltliyti oonb tuanindeedr .§ 2254 on the ground that the prior [2] 3 Id. at 403-04. 4 Dunsmore’s conviction in case no. SCS 179057 is longer open to collateral attack 5 because Dunsmore is no longer in custody pursuant to that 2004 conviction. The 6 Lackawanna Court identified two exceptions to the rule: (1) if the petitioner challenges the 7 enhanced sentence by claiming that a state conviction used to enhance the sentence is 8 invalid because counsel was not appointed, in violation of the Sixth Amendment, and (2) 9 if federal habeas review is “effectively the first and only forum available for review of the 10 prior conviction.” Id. at 404-06. Neither exception applies in Dunsmore’s case. Dunsmore 11 was represented by counsel in case no. SCS 179057. (ECF No. 37 at 5.) And, Dunsmore 12 has availed himself of the opportunity to challenge the validity of his conviction in state 13 court. See People v. Dunsmore, No. D076678, 2020 WL 1846678 (Cal. Ct. App. April 13, 14 2020); California courts website, https://appellatecases.courtinfo.ca.gov/search/case/dock 15 ets.cfm?dist=41&doc_id=2300646&doc_no=D076678&request_token=NiIwLSEmTkw8 16 WzBJSCJdUEJIMEQ6UkxbJCM%2BXz1RMCAgCg%3D%3D (last visited on March 8, 17 2021). For these reasons, this Court lacks jurisdiction over the claims in the Petition 18 relating to Dunsmore’s conviction in case no. SCS 179057 because he is no longer in 19 custody pursuant to that conviction. See Lackawanna, 532 U.S. at 403-04 ; Maleng v. Cook, [20] 490 U.S. 488 , 490–91(1989); Rule 2(e), 28 U.S.C. foll. § 2254. 21 2. Claims Related to San Diego Superior Court Case No. SCS 215653 22 As the Court noted in section II of this Order, Dunsmore was resentenced for a 23 second time in San Diego Superior Court case no. SCS 215653 on July 15, 2020. 24 (Lodgment No. 21, ECF No. 23-21 at 126–27.) Dunsmore appealed his resentencing to 25 the California Court of Appeal for the Fourth Appellate District, Division One, and that 26 appeal is currently ongoing. (Lodgment No. 22, ECF No. 23-22.) 27 As the Court has explained to Dunsmore in previous Orders, under Younger, federal 28 courts may not interfere with ongoing state criminal proceedings absent extraordinary 1 circumstances. Id. at 45-46; see Middlesex County Ethics Comm. v. Garden State Bar 2 Ass’n, 457 U.S. 423, 431 (1982) (stating that Younger “espouse[d] a strong federal policy 3 against federal-court interference with pending state judicial proceedings.”) The Ninth 4 Circuit has explained that: “Younger abstention is appropriate when: (1) there is ‘an 5 ongoing state judicial proceeding’; (2) the proceeding ‘implicate(s) important state 6 interests’; (3) there is ‘an adequate opportunity in the state proceedings to raise 7 constitutional challenges’; and (4) the requested relief ‘seek(s) to enjoin’ or has ‘the 8 practical effect of enjoining’ the ongoing state judicial proceeding.” Arevalo v. Hennessy, [9] 882 F.3d 763, 765 (9th Cir. 2018), quoting ReadyLink Healthcare, Inc. v. State Comp. Ins. 10 Fund, 754 F.3d 754, 758 (9th Cir. 2014). 11 Each of those criteria are satisfied here. Dunsmore’s criminal appeal is ongoing in 12 state court. (Lodgment No. 21, ECF No. 23-21 at 126–27.) There is no indication 13 Dunsmore is unable to petition the state courts for the relief he seeks; indeed, as detailed 14 in section II of this Order, he has filed numerous petitions in state and federal court, as well 15 as in the Ninth Circuit, some of which have been successful. It is also clear that 16 Dunsmore’s state criminal proceedings involve important state interests. Finally, because 17 it is evident from the many petitions Dunsmore has filed, both in state court and in this 18 Court, that he wishes to challenge his sentence in San Diego Superior Court case no. SCS 19 215653, it is also evident that federal action would enjoin the ongoing state criminal 20 proceeding. (See also Pet., ECF No. 1 at 7, stating that he is “wrongfully incarcerated.”) 21 Accordingly, abstention is required. See Drury v. Cox, 457 F.2d 764, 764-65 (9th Cir. 22 1972) (stating that “only in the most unusual circumstances is a defendant entitled to have 23 federal interposition by way of injunction or habeas corpus until after the jury comes in, 24 judgment has been appealed from and the case concluded in the state courts.”); see also 25 Juidice v. Vail, 430 U.S. 327, 337 (1977) (holding that if Younger abstention applies, a 26 court may not retain jurisdiction but should dismiss the action). 27 / / / 28 / / / 1 3. Other Claims in the Petition 2 Dunsmore claims he has suffered violations of his due process rights, access to the 3 courts and access to legal materials. (Pet., ECF No. 1 at 2-7.) These claims are not 4 cognizable on federal habeas corpus review because it they do not challenge the 5 constitutional validity or duration of confinement. See 28 U.S.C. 2254(a); Preiser v. 6 Rodriguez, 411 U.S. 475, 500 (1973); Heck v. Humphrey, 512 U.S. 477, 480-85 (1994); 7 Nettles v. Grounds, 830 F.3d 922, 935 (9th Cir. 2016). 8 Challenges to the fact or duration of confinement are brought by petition for a writ 9 of habeas corpus, pursuant to 28 U.S.C. § 2254 ; Nettles, 830 F.3d at 935 . When a state 10 prisoner is challenging the very fact or duration of his physical imprisonment, and the relief 11 he seeks is a determination that he is entitled to immediate release or a speedier release 12 from that imprisonment, his sole federal remedy is a writ of habeas corpus. Preiser, 411 13 U.S. at 500; Nettles, 830 F.3d at 935 . On the other hand, a 42 U.S.C. § 1983 action is a 14 proper remedy for a state prisoner who is making a constitutional challenge to the 15 conditions of his prison life but not to the fact or length of his custody. Preiser, 411 U.S. 16 at 500; Nettles, 830 F.3d at 935 . Dunsmore’s claims regarding due process violations, 17 access to the courts and legal materials do not challenge the fact or length of his custody. 18 Thus, these claims are not cognizable pursuant to 28 U.S.C. § 2254 . 19 B. Dunsmore’s Motions 20 Dunsmore has filed nine motions. They are: 1) Motion for Civil Contempt (ECF 21 No. 7), 2) Motion for ADA Access (ECF No. 9), 3) Motion for Accommodations (ECF 22 No. 20), 4) Motion to Amend (ECF No. 25), 5) Motion for Default Judgment (ECF No. 23 27), 6) Motion to Amend (ECF No. 31), 7) Motion for Judicial Notice (ECF No. 33), 8) 24 Motion for Extension of Time (ECF No. 35), and 9) Motion for Stay (ECF No. 37). 25 1. Motion for Civil Contempt [ECF No. 7] 26 In this motion, Dunmore reiterates many of the complaints he asserts in his petition, 27 specifically that he is being denied access to legal materials which impedes his ability to 28 assert claims and respond to Respondent’s filings. (Mot. for Civ. Contempt, ECF No. 9.) 1 He claims he is a class member covered by an injunction issued in Gilmore v. Lynch, 319 2 F. Supp. 105 (1970) and moves for civil contempt pursuant to Fed. R. Civ. Pro. 70, which 3 states as follows: 4 (a) Party’s Failure to Act; Ordering Another to Act. If a judgment requires a party to convey land, to deliver a deed or other document, or to [5] perform any other specific act and the party fails to comply within the time 6 specified, the court may order the act to be done–at the disobedient party's expense--by another person appointed by the court. When done, the act has [7] the same effect as if done by the party. [8] (b) Vesting Title. If the real or personal property is within the district, [9] the court–instead of ordering a conveyance–may enter a judgment divesting 10 any party's title and vesting it in others. That judgment has the effect of a legally executed conveyance. [11] 12 (c) Obtaining a Writ of Attachment or Sequestration. On application by a party entitled to performance of an act, the clerk must issue a writ of [13] attachment or sequestration against the disobedient party's property to compel 14 obedience. [15] (d) Obtaining a Writ of Execution or Assistance. On application by a 16 party who obtains a judgment or order for possession, the clerk must issue a writ of execution or assistance. [17] 18 (e) Holding in Contempt. The court may also hold the disobedient party in contempt. [19] 20 Fed. R. Civ. Pro. 70 (West 2020). 21 The court in Gilmore enjoined the enforcement of some California prison regulations 22 restricting prisoners’ access to legal materials because they interfered with prisoners’ rights 23 to access the courts. Gilmore, 319 F. Supp. at 107–09, 112. The Gilmore injunction is no 24 longer in effect. See Stevenson v. Beard, 2020 WL 1245393 (S.D. Cal. March 16, 2020) 25 (noting that “[t]he district court retained jurisdiction over the 1972 [Gilmore] injunction 26 until it granted defendant’s motion to terminate the injunction and the court’s jurisdiction 27 on April 20, 2010” citing Corral v. Yates, No. 1:10-cv-01341-SKO-HC, 2011 WL 28 3925131, at *4 (E.D. Cal. Sept. 7, 2011) and Gilmore v. Lynch, No. 3:66-cv-45878-SI 1 (N.D. Cal. Apr. 20, 2010), ECF No. 321).) Accordingly, Dunsmore’s motion for civil 2 contempt is DENIED. 3 On page six of this motion, Dunsmore asks for a temporary restraining order. (ECF 4 No. 7 at 6.) A person seeking a preliminary injunction must establish: (1) a likelihood of 5 succeed on the merits; (2) a likelihood that plaintiff will suffer irreparable harm in the 6 absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that 7 an injunction is in the public interest. Winter v. Natural Res. Def. Council, 555 U.S. 7 , 20 8 (2008). “The standard for issuing a temporary restraining order is identical to the standard 9 for issuing a preliminary injunction.” Lockheed Missile & Space Co., Inc. v. Hughes 10 Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995); see also Stuhlbarg Intern. Sales 11 Co., Inc. v. John D. Brushy and Co., Inc., 240 F.3d 832 , 839 n.7 (9th Cir. 2001) (stating 12 that standards for issuing a TRO are “substantially identical” to those for issuing a 13 preliminary injunction). As the movant, Dunsmore “must do more than merely allege 14 imminent harm sufficient to establish standing; [he] must demonstrate immediate 15 threatened injury as a prerequisite to preliminary injunctive relief.” Caribbean Marine 16 Servs. Co., Inc. v. Baldrige, 844 F.2d 668, 674-675 (9th Cir. 1988) (stating that speculative 17 injury does not constitute irreparable harm sufficient to warrant granting a preliminary 18 injunction) (internal citations omitted). 19 Dunsmore’s allegations do not meet these standards. As discussed above, he has not 20 shown any likelihood of success on the merits. See Pimental v. Dreyfus, 670 F.3d 1096 , 21 1111 (9th Cir. 2012) (stating that “at an irreducible minimum,” the party seeking immediate 22 injunctive relief “must demonstrate a fair chance of success on the merits, or questions 23 serious enough to require litigation”). Nor has he established that he will “suffer 24 irreparable harm in the absence of preliminary relief,” or “demonstrated immediate 25 threatened injury.” Winter, 555 U.S. at 20 ; Caribbean Marine Servs. Co., Inc., 844 F.2d 26 at 674-675 . For these reasons, the request for a TRO is DENIED. 27 / / / 28 / / / 1 2. Motion for ADA [Americans With Disabilities Act] Access [ECF No. 9] 2 In his motion for ADA access, Dunsmore states he is “petitioning for access to ADA 3 coordinator per CRC 1.100 per Federal Rules of reg Title 28 chapter 1 part 35.107a and 4 the grievance procedure 35.107b I’m being denied informal requests and feel I’m being 5 discriminated against.” (Mot. for ADA Access, ECF No. 9.) CRC refers to the California 6 Rules of Court, which governs proceedings in California State Courts. It has no 7 applicability here where Petitioner is a state prisoner proceeding with a federal habeas 8 corpus petition. “Title 28 chapter 1 part 35.107a and the grievance procedure 35.107b” 9 appears to refer to 28 C.F.R. Ch. 1, Part 35, which governs nondiscrimination on the basis 10 of disability in state and local government services. Part 35.107a–b states as follows: 11 (a) Designation of responsible employee. A public entity that employs 50 or more persons shall designate at least one employee to coordinate its [12] efforts to comply with and carry out its responsibilities under this part, 13 including any investigation of any complaint communicated to it alleging its noncompliance with this part or alleging any actions that would be prohibited [14] by this part. The public entity shall make available to all interested individuals 15 the name, office address, and telephone number of the employee or employees designated pursuant to this paragraph. [16] 17 (b) Complaint procedure. A public entity that employs 50 or more persons shall adopt and publish grievance procedures providing for prompt [18] and equitable resolution of complaints alleging any action that would be 19 prohibited by this part. 20 28 C.F.R. Ch.1, Part 35.107. 21 The cited regulation simply provides a structure for state entities to implement the 22 ADA. It does not mandate that any individual be guaranteed access to an ADA coordinator 23 and it does not provide any authority to this Court to direct the California Department of 24 Corrections or any other entity to provide Dunsmore with access to an ADA coordinator. 25 Further, Dunsmore has not provided the Court with any evidence establishing he is entitled 26 to access an ADA coordinator, or that he is being improperly denied access to one. 27 Accordingly, his motion for ADA access [ECF No. 9] is DENIED. 28 / / / 1 3. Motion for Accommodations [ECF No. 20] 2 Dunsmore has filed a copy of a California Judicial Council form which requests 3 accommodations for person with disabilities to access the California court system, which 4 the Court construed as a Motion for Accommodations. (ECF Nos. 19–20.) In this filing, 5 he makes the same allegations as he does in his habeas corpus petition regarding his lack 6 of access to legal materials. (Id. at 3-8.) As discussed in section III(A)(3) of this Order, a 7 42 U.S. C. § 1983 action is the proper remedy for a state prisoner who is making a 8 constitutional challenge to the conditions of his prison life but not to the fact or length of 9 his custody. See 28 U.S.C. 2254(a); Preiser, 411 U.S. at 500 ; Heck, 512 U.S. at 480-85 ; 10 Nettles, 830 F.3d at 935 . For this reason, his motion for accommodations [ECF No. 20] is 11 DENIED. 12 On page two of this filing, Dunsmore ask for another TRO regarding the allegations 13 he makes in his motion. (ECF No. 20 at 2.) As noted above, to be successful Dunsmore 14 must establish: (1) a likelihood of succeed on the merits; (2) a likelihood that he will suffer 15 irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in 16 his favor; and (4) that an injunction is in the public interest. Winter, 555 U.S. at 20 . 17 Further, he “must do more than merely allege imminent harm sufficient to establish 18 standing; [he] must demonstrate immediate threatened injury as a prerequisite to 19 preliminary injunctive relief.” Caribbean Marine Servs. Co., Inc., 844 F.2d at 674-675. 20 Dunsmore is not entitled to a TRO because, as discussed above, he has not shown 21 any likelihood of success on the merits, Pimental, 670 F.3d at 1111 , nor has he established 22 that he will “suffer irreparable harm in the absence of preliminary relief,” or “demonstrated 23 immediate threatened injury.” Winter, 555 U.S. at 20 ; Caribbean Marine Servs. Co., Inc., 24 844 F.2d at 674-675. For these reasons, the request for a TRO is DENIED. 25 4. Motions to Amend [ECF Nos. 25, 31] 26 Dunsmore has two pending motions to amend. The first, ECF No. 25, is an 27 application to file a second or successive petition which was filed as a motion to amend in 28 this case at the direction of the Ninth Circuit. (See ECF No. 25; Dunsmore v. Eldridge, 1 No. 20-73179 (9th Cir. Oct. 26, 2020); ECF No. 25-2.) In this document, Dunsmore states 2 he wishes to raise the following claims: “civil right due process, obstruction of meaningful 3 access, ADA access.” (ECF No. 25 at 3.) In a supplemental filing, he states he is 4 challenging his conviction in San Diego Superior Court case no. SCS 215653 and notes he 5 previously filed a habeas corpus action in this court, Dunsmore v. Paramo, et al., S.D. Cal. 6 case no. 3:13-cv-01193-GPC-PCL. (ECF No. 25-1 at 3.) He states he wishes to raise the 7 following grounds in his current habeas corpus petition: “newly discovered evid[ence], 8 ineffective assistance, illegal sentence.” (Id. at 4.) He also claims the sentence imposed at 9 his July 15, 2020 resentencing hearing was illegal. (Id. at 5.) In his second motion to 10 amend [ECF No. 31], Dunsmore states he wishes to amend his petition with the claims 11 contained in another habeas corpus action he filed in this Court, Dunsmore v. Eldridge, et 12 al., S.D. Cal. case no. 3:20-01518-BAS-KSC. (See ECF No. 31.) 13 As to Dunsmore’s first motion to amend, his claims of “civil right . . . obstruction of 14 meaningful access, ADA access” are not cognizable on federal habeas corpus review. As 15 discussed above, when a state prisoner is challenging the very fact or duration of his 16 physical imprisonment, and the relief he seeks is a determination that he is entitled to 17 immediate release or a speedier release from that imprisonment, his sole federal remedy is 18 a writ of habeas corpus. Preiser, 411 U.S. at 500 ; Heck, 512 U.S. at 480-85 ; Nettles, 830 19 F.3d at 935. On the other hand, a § 1983 action is a proper remedy for a state prisoner who 20 is making a constitutional challenge to the conditions of his prison life or constitutional 21 challenges to his arrest, but not to the fact or length of his custody. Preiser, 411 U.S. at 22 500; Nettles, 830 F.3d at 935 . The claims Dunsmore wants to add to his Petition in his first 23 motion to amend [ECF No. 25] – “civil right,” “obstruction of meaningful access,” and 24 “ADA access” – do not seek to challenge the fact or length of his custody, and are therefore 25 not appropriate for amendment in this case. 26 Dunsmore’s first motion to amend also states he is challenging his conviction in San 27 Diego Superior Court case no. SCS 215653 and seeks to raise the following claims: “newly 28 discovered evid[ence], ineffective assistance, illegal sentence,” and a claim that the 1 sentence imposed at his July 15, 2020 resentencing hearing was illegal. (Id. at 4–5.) As 2 this Court noted in section II of this Order, Dunsmore has already challenged his conviction 3 in San Diego Superior Court case no. SCS 215653 in this Court in Dunsmore v. Paramo, 4 et al., S.D. Cal. case no. 3:13-cv-01193-GPC-PCL. In order for this Court to consider any 5 challenge to his conviction in San Diego Superior Court case no. SCS 215653, as opposed 6 to his 2020 resentencing in that case, Dunsmore must show he has obtained an Order from 7 the Ninth Circuit Court of Appeals authorizing this Court to consider a successive petition. 8 See 28 U.S.C. § 2244 (b)(3)(A); see also Burton v. Stewart, 549 U.S. 147, 153 (2007) 9 (stating that a petition is successive where it challenges “the same custody imposed by the 10 same judgment of a state court” as a prior petition). Here, there is no indication the Ninth 11 Circuit Court of Appeals has granted Petitioner leave to file a successive petition. And, as 12 the Court also discussed in section III(A)(2), claims relating to Dunsmore’s July 15, 2020 13 resentencing in San Diego Superior Court case no. SCS 215653 must be dismissed on 14 abstention grounds pursuant to Younger because he is currently appealing his resentencing 15 and proceeding are ongoing in state court. Accordingly, Dunsmore’s first motion to amend 16 is DENIED. 17 In his second motion to amend, Dunsmore claims that the Ninth Circuit gave him 18 permission to amend his Petition in this case in its January 25, 2021 Order in Ninth Circuit 19 case no. 20-73179 and that he wishes to amend the Petition with the claims he raised in 20 Dunsmore v. Eldridge, S.D. Cal. case no. 3:20-cv-01518-BAS-KSC. (ECF No. 31 at 1.) 21 The Ninth Circuit’s Order reads as follows: 22 The application for authorization to file a second or successive 28 U.S.C. § 2254 habeas corpus petition in the district court, as supplemented by [23] the applicant’s submission entered at Docket Entry No. 2, is denied as 24 unnecessary because the applicant has a § 2254 habeas petition currently pending before the United States District Court for the Southern District of [25] California in case no. 3:20-cv-01773-CAB-AGS, which challenges his 2020 26 resentencing proceedings in San Diego Superior Court case number SCS 215653. See Goodrum v. Busby, 824 F.3d 1188, 1194-95 (9th Cir. 2016) [27] (concluding that an application for authorization to file a second or successive [28] 1 hfiarbste hasa bceoarsp ucos rppeutsi tpioenti tsihoonu).l d be construed as a motion to amend a pending [2] 3 The Clerk will transfer the application and supplement, filed at Docket Entry Nos. 1 and 2, to the district court to be processed as a motion to amend [4] the currently pending § 2254 habeas petition in Southern District of California 5 case number 3:20-cv-1773-CAB-AGS. The motion is deemed filed in the district Court on October 22, 2020. See Fed. R. App. P. 4(c)(1); Butler v. [6] Long, 752 F.3d 1177 , 1178 n.1 (9th Cir. 2014) (assuming petitioner turned his 7 petition over to prison authorities on the day it was signed and applying the mailbox rule). [8] 9 We express no opinion as to whether leave to amend should be granted. [10] The Clerk will serve this order, the application, and supplement directly 11 on the chambers of the Honorable Cathy Ann Bencivengo and the Honorable Andrew G. Schopler. [12] 13 Upon transfer of the supplemental application, the Clerk will close the original action. [14] 15 Any pending motions are denied as moot. [16] No further filings will be entertained in this case. [17] 18 (ECF No. 25-2) (italics added). 19 The Ninth Circuit’s Order did not grant Dunsmore permission to amend his petition 20 in this case with the claims contained in his prior petition in S.D. Cal. case no. 3:20-cv21 01518-BAS-KSC. It simply explained that because Dunsmore was already challenging his 22 2020 resentencing in San Diego Superior Court case no. SCS 215653 in this case, there 23 was no need for him to obtain permission to file a successive petition and directed that his 24 application be filed as motion to amend in this case. (Id.) Moreover, the claims Dunsmore 25 raised in 3:20-cv-01518-BAS-KSC all relate to his conviction in San Diego Superior Court 26 case no. SCS 215653. As discussed in the section above, any claims related to that 27 conviction are successive. Accordingly, Dunsmore’s second motion to amend the petition 28 [ECF No. 31] is DENIED. 1 5. Motion for Default Judgment [ECF No. 27] 2 Dunsmore filed a motion for default judgment on January 26, 2021, alleging that no 3 motion to dismiss had been filed by the deadline set by the Court. (ECF No. 27). 4 Dunsmore claims Respondent was to file a responsive pleading in this case by January 13, 5 2021, but did not do so until January 14, 2021, and thus a default judgment is warranted. 6 (Id.) 7 A default judgment may be entered “[w]hen a party against whom a judgment for 8 affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown 9 by affidavit or otherwise . . . .” Fed. R. Civ. Pro. 55(a) (West 2020). On November 20, 10 2020, the Court granted Respondent an extension of time until January 14, 2021 to respond 11 to the petition. (ECF No. 17) Respondent filed a motion to dismiss on January 14, 2021. 12 (ECF No. 22.) Respondent did not “faile[] to plead or otherwise defend” the Petition in 13 this case, and Dunsmore’s motion for default is therefore DENIED. 14 6. Motion for Judicial Notice [ECF No. 33] 15 Dunsmore has also filed a motion for judicial notice in which he asks this Court to 16 change the docket in this case and to take judicial notice of “pending litigation in the Ninth 17 Circuit concerning abridgement of Petitioner’s rights” in Ninth Circuit case no. 20-56135. 18 (ECF No. 33 at 1-2.) 19 Dunsmore contends Respondent asked this Court for an extension of time until 20 January 13, 2021 to file a responsive pleading. (Id. at 1.) He claims the docket in this case 21 has been altered to reflect that the date requested and granted was January 14, 2021. (Id.) 22 Dunsmore is incorrect. Respondent requested and was granted an extension of time to file 23 a response until January 14, 2021. (ECF Nos. 16-17.) Dunsmore also claims the caption 24 of this case was changed to “Dunsmore v. Gore, et al.” and that “no case was filed as Gore, 25 et al.” (Id. at 1.) The Petition filed by Dunsmore lists as Respondents “Gore” and “Xavier 26 Becerra.” (See ECF No. 1.) The term “et al.” is Latin for “and others” and is used in legal 27 documents in place of listing all parties to a case. See https://www.merriam28 webster.com/dictionary/et%20al. Because Dunsmore listed “Gore” and “Xavier Becerra” 1 as Respondents, the caption reads “Gore, et al.,” meaning “Gore, and others.” The caption 2 in this case is not incorrect. Dunsmore’s motion for judicial notice as to the alleged errors 3 in the docket is DENIED. 4 As to Dunsmore’s request to take judicial notice of Ninth Circuit case no. 20-56135, 5 that case is an appeal from the dismissal of a complaint filed pursuant to 42 U.S.C. § 1983 6 in S.D. Cal. case no. 3:20-cv-00406-AJB-WVG. (See Dunsmore v. State of Cal., et al., 7 No. 20-56135 (9th Cir. Oct. 29, 2020); ECF No. 33.) A motion for voluntary dismissal of 8 the case was granted by this Court on October 14, 2020. (See Dunsmore v. State of Cal., 9 et al., S.D. Cal. case no. 3:20-cv-00406-AJB-WVG, ECF No. 32.) A court may take 10 judicial notice of its own records. See Molus v. Swan, Civil Case No. 3:05-cv-0045211 MMA-WMc, 2009 WL 160937 , *2 (S.D. Cal. Jan. 22, 2009) (citing United States v. Author 12 Services, 804 F.2d 1520, 1523 (9th Cir. 1986). Accordingly, Dunsmore’s motion for 13 judicial notice as to Dunsmore v. State of Cal., et al., No. 20-56135 (9th Cir. Oct. 29, 2020) 14 is GRANTED. 15 7. Motion for Extension of Time [ECF No. 35] 16 Dunsmore asks for an extension of time “pending clarification of 9th Cir. Order in 17 20-73179 which may result in claims raised on separate habeas being joined to this case 18 and further amendment or addendum.” (ECF No. 35 at 1.) As noted above, the Ninth 19 Circuit in Dunsmore v. Eldridge, No. 20-73179 (9th Cir. Oct. 26, 2020) advised Dunsmore 20 that his application to file a successive petition was unnecessary because he was pursuing 21 his challenge to his 2020 resentencing in San Diego Superior Court no SCS 215653 in this 22 case and directed his application to be filed as an amended petition in this case. See 23 Dunsmore v. Eldridge, No. 20-73179 (9th Cir. Oct. 26, 2020, ECF No. 3; ECF No. 25-2.) 24 The Ninth Circuit also informed Dunsmore that it “express[ed] no opinion as to whether 25 leave to amend should be granted,” and advised Dunsmore that “[n]o further filings will be 26 entertained in this case.” (Id. at 2.) Because there is no “clarification” forthcoming from 27 the Ninth Circuit in case no. 20-73179 and Dunsmore’s motions to amend have been 28 denied, there is no grounds for an extension of time. The motion is therefore DENIED. 1 8. Motion for Stay [ECF No. 37] 2 Finally, Dunsmore has filed a motion for stay in which he claims the San Diego 3 County District Attorney is violating the plea agreement he entered into in San Diego 4 Superior Court case no. 179057 and asks this court to stay the eight-month prison sentence 5 he received in that case. (ECF No. 37 at 1-2.) Dunsmore pleaded guilty to attempted 6 criminal threats in San Diego Superior Court case no. 179057 in 2004. See People v. 7 Dunsmore, 2020 WL 1846678 (Cal. Ct. App. April 13, 2020). This conviction was used 8 to enhance his sentence in San Diego Superior Court case no. SCS 215653. (Id.) In 2019, 9 he made a motion to withdraw his guilty plea, and the superior court denied the motion; 10 Dunsmore appealed the denial and the California Court of Appeal affirmed. (Id.) A 11 petition for rehearing was denied by the state appellate court and a petition for review was 12 denied by the California Supreme Court. (See California Courts website, 13 https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=41&doc_id=230064 14 6&doc_no=D076678&request_token=NiIwLSEmTkw8WzBJSCJdUEJIMEQ6UkxbJCM 15 %2BXz1RMCAgCg%3D%3D (last visited on March 1, 2021.) As this Court has noted, a 16 petitioner may only attack one conviction in a habeas corpus petition filed pursuant to 28 17 U.S.C. § 2254 . Rule 2(e), 28 U.S.C. foll. 2254. Further, given that the eight-month 18 sentence was imposed in 2004, Dunsmore has assuredly already served the sentence he 19 wishes to stay. Accordingly, the Motion for Stay is DENIED. 20 V. CONCLUSION 21 The Court GRANTS Respondent’s Motion to Dismiss for the reasons discussed 22 above. 23 The Court DENIES Dunsmore’s Motion for Civil Contempt [ECF No. 7], Motion 24 for ADA Access [ECF No. 9], Motion for Accommodations [ECF No. 20], Motions to 25 Amend [ECF Nos. 25, 31], Motion for Default Judgment [ECF No. 27], Motion for 26 Extension of Time [ECF No. 35], and Motion for Stay [ECF No. 27]. Dunsmore’s Motion 27 for Judicial Notice [ECF No. 33] is DENIED as to any change in the case caption and 28 GRANTED as to his request for judicial notice of Ninth Circuit case no. 20-56135. 1 Rule 11 of the Rules Following 28 U.S.C. § 2254 require the District Court to “issue 2 ||or deny a certificate of appealability when it enters a final order adverse to the applicant.” 3 11, 28 U.S.C. foll. § 2254 (West 2019). A COA will issue when the petitioner makes 4 ||a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253 (West 5 ||2019); Pham v. Terhune, 400 F.3d 740, 742 (9th Cir. 2005). A “substantial showing” 6 requires a demonstration that “‘reasonable jurists would find the district court’s assessment 7 || of the constitutional claims debatable or wrong.’” Beaty v. Stewart, 303 F.3d 975, 984 (9th 8 ||Cir. 2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Here, the Court 9 ||concludes Dunsmore has not made the required showing, and therefore a certificate of 10 || appealability is DENIED. 11 IT IS SO ORDERED. 12 Dated: March 8, 2021 (fb [13] Hon. Cathy Ann Bencivengo 14 United States District Judge