Dean v. Woodbury

[2] 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 SEAN MAURICE DEAN, Case No. 3:22-cv-00262-ART-CLB 7 Plaintiff, ORDER v. [8] GARY D. WOODBURY, [9] Defendant. [10] 11 Pro se Plaintiff Sean Maurice Dean (“Dean”) brings this action under 42 12 U.S.C. § 1983 against Defendant Attorney Gary D. Woodbury (“Woodbury”), his 13 former counsel. (ECF No. 1.) Before the Court is Magistrate Judge Baldwin’s 14 Report and Recommendation (ECF No. 4), Dean’s motion for leave to file late 15 objections to the R&R (ECF No. 5), and Dean’s motion for leave to add defendants 16 (ECF No. 8). For the reasons stated below, the Court adopts the R&R, grants 17 Dean’s motion to file late objections to the R&R and denies Dean’s motion to add 18 defendants as moot. 19 The Court “may accept, reject, or modify, in whole or in part, the findings 20 or recommendations made by the magistrate judge.” 28 U.S.C. § 636 (b)(1). Where 21 a party fails to object to a magistrate judge’s recommendation, the Court is not 22 required to conduct “any review at all . . . of any issue that is not the subject of 23 an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also United States v. 24 Reyna-Tapia, 328 F.3d 1114, 1116 (9th Cir. 2003) (“De novo review of the 25 magistrate judges’ findings and recommendations is required if, but only if, one 26 or both parties file objections to the findings and recommendations.”) (emphasis 27 in original); Fed. R. Civ. P. 72, Advisory Committee Notes (1983) (providing that [28] 1 the Court “need only satisfy itself that there is no clear error on the face of the 2 record in order to accept the recommendation.”). 3 The complaint relates to Dean’s underlying state criminal case and 4 conviction. Dean alleges that Woodbury violated Dean’s constitutional rights to 5 a fair and impartial jury and discriminated against Dean by reason of his race. 6 Dean asserts two claims and seeks declaratory and monetary relief. Magistrate 7 Judge Baldwin recommends that Dean’s application to proceed in forma 8 pauperis, (ECF No. 1), and his motion for counsel, (ECF No. 1-2), be denied as 9 moot. 10 Section 1983 “provides a federal cause of action against any person who, acting 11 under color of state law, deprives another of his federal rights.” Conn v. Gabbert, [12] 526 U.S. 286, 290 (1999). An inmate cannot rely on Section 1983 to overturn a 13 state court conviction or award relief related to the fact or duration of a sentence. 14 Section 1983 and “the federal habeas corpus statute . . . both provide access to 15 the federal courts ‘for claims of unconstitutional treatment at the hands of state 16 officials, . . . [but] they different in their scope and operation.’” Ramirez v. Galaza, [17] 334 F.3d 850, 854 (9th Cir. 2003) (quoting Heck v. Humphrey, 512 U.S. 477 , 48 18 (1994)). Federal courts must take care to prevent prisoners from relying on § 19 1983 to circumvent the procedural requirements of habeas corpus proceedings 20 under 28 U.S.C. § 2254 . Heck, 512 U.S. at 486-87 ; Simpson v. Thomas, 528 F.3d 21 685, 695 (9th Cir. 2008). 22 When a prisoner challenges the legality or duration of his custody, raises 23 a constitutional challenge which could entitle him to an earlier release, or seeks 24 damages for purported deficiencies in his state court criminal case, which 25 effected a conviction or lengthier sentence, his sole federal remedy is a writ of 26 habeas corpus. Edwards v. Balisok, 520 U.S. 641, 648 (1997); Heck, 512 U.S. at 27 481; Wolf v. McDonnell, 418 U.S. 539, 554 (1974); Preiser v. Rodriguez, 411 U.S. 28 475 (1973); Simpson, 528 F.3d at 692-93 . Stated differently, where “a judgment 1 in favor of the plaintiff would necessarily imply the invalidity of his conviction or 2 sentence,” then “the complaint must be dismissed unless the plaintiff can 3 demonstrate that the conviction or sentence has already been invalidated.” Heck, [4] 512 U.S. at 487 . 5 Here, Dean is directly challenging his criminal defense attorney’s conduct 6 and thus the constitutionality of Dean’s state court criminal conviction. 7 Consequently, he must demonstrate that his conviction has been overturned to 8 proceed in an action under § 1983. 9 Dean attaches to his complaint an opinion from the Nevada Supreme 10 Court regarding his postconviction petition for habeas corpus dated January 13, 11 2022. (ECF No. 1-1 at 25-33.) The Nevada Supreme Court found that statements 12 Defendant Woodbury made during Dean’s criminal trial, “impermissibly tainted 13 the jury pool by introducing racial invective into the proceedings. Counsel’s 14 performance fell below an objective standard of reasonableness and prejudiced 15 the defense.” (Id. at 33.) Thus, the Nevada Supreme Court reversed the district 16 court’s order denying Dean’s postconviction habeas petition and remanded the 17 matter for further proceedings. (Id.) To proceed with an action for damages under [18] 42 U.S.C. § 1983 , however, Dean must be able to show that his conviction or 19 sentence was reversed, expunged, invalidated, or impugned by the grant of a writ 20 of habeas corpus. Heck, 512 U.S. at 489 (Even a prisoner who has fully 21 exhausted available state remedies has no cause of action under § 1983 unless 22 and until the conviction or sentence is reversed, expunged, invalidated, or 23 impugned by the grant of a writ of habeas corpus.). 24 The Court agrees with Magistrate Judge Baldwin that while Dean has 25 obtained a favorable ruling from the Nevada Supreme Court as to his habeas 26 petition, the Nevada Supreme Court remanded his case for further proceedings, 27 they did not grant the petition outright such that his conviction has been 28 invalidated. Accordingly, at this time, Dean’s complaint is premature. 1 Dean’s untimely objections, which the Court did consider, misconstrue the 2 reasoning of the R&R. Dean reads the R&R to require an “unconditional” grant 3 of habeas corpus or an order of release to overcome Heck. That was not what the 4 R&R stated. The R&R found that Dean has not alleged that following remand by 5 the Nevada Supreme Court the district court granted his writ of habeas corpus. 6 It is for that reason that the R&R reasoned that his complaint was premature. 7 The R&R did not find that Dean would have to be retried and acquitted or 8 otherwise released to overcome Heck. Because Dean does not allege that the 9 district court, on remand, granted his writ of habeas corpus his complaint is 10 barred by Heck and premature. 11 The Court finds that the Dean’s Complaint also fails on another ground 12 because Dean’s state appointed counsel is not a state actor for the purposes of 13 § 1983. Woodbury was Dean’s state appointed counsel, effectively his public 14 defender. When public defenders are acting in their role as advocate, they are 15 not acting under color of state law for § 1983 purposes. See Georgia v. McCollum, [16] 505 U.S. 42, 53 (1992); Polk Cnty. v. Dodson, 454 U.S. 312 , 320–25 (1981); 17 Jackson v. Brown, 513 F.3d 1057, 1079 (9th Cir. 2008); Miranda v. Clark Cnty., 18 Nev., 319 F.3d 465, 468 (9th Cir. 2003) (en banc); United States v. De Gross, [19] 960 F.2d 1433 , 1442 n.12 (9th Cir. 1992) (en banc); see also Vermont v. Brillon, [20] 556 U.S. 81, 91 (2009) (assigned public defender is ordinarily not considered a 21 state actor). The Supreme Court has concluded that public defenders do not act 22 under color of state law because their conduct as legal advocates is controlled 23 by professional standards independent of the administrative direction of a 24 supervisor. See Brillon, 556 U.S. at 92 ; Polk Cnty., 454 U.S. at 321 . Because 25 Woodbury was not a state actor the Complaint fails on an entirely separate basis 26 than the basis articulated in the R&R. 27 The Court thus dismisses the Complaint without prejudice and without 28 leave to amend. 1 IT IS THEREFORE ORDERED that Magistrate Judge Baldwin’s Report and 2 || Recommendation (ECF No. 4) is accepted and adopted in full; 3 IT IS FURTHER ORDERED that that Plaintiffs application to proceed in 4 || forma pauperis, (ECF No. 1), and his motion for counsel, (ECF No. 1-2), be 5 || DENIED AS MOOT; 6 IT IS FURTHER ORDERED that the Clerk FILE the complaint, (ECF No. 17 || 1); 8 IT IS FURTHER ORDERED that Plaintiffs complaint, (ECF No. 1-1), is 9 || DISMISSED WITHOUT PREJUDICE AND WITHOUT LEAVE TO AMEND; 10 IT IS FURTHER ORDERED that Plaintiffs motion for leave to add 11 || defendants is DENIED AS MOOT; 12 IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly 13 || and administratively close this case. [14] 15 DATED THIS 27t Day of February 2023. [16] 17 An vs jlosead Jen 18 ANNE R. TRAUM 19 UNITED STATES DISTRICT JUDGE