Opinion
No. C 17-7349 WHA (PR)
02-01-2018
ROBERT J. ELLIS, Plaintiff, v. ROBERT FOX, Defendant.
ORDER OF DISMISSAL
Plaintiff, a California prisoner proceeding pro se, filed this civil rights case under 42 U.S.C. 1983. He states that his conviction in state court violates his constitutional rights because he received ineffective assistance of counsel and he was convicted based upon false evidence. His federal habeas petition was denied as untimely under the AEDPA. He claims that the AEDPA's statute of limitations violates his constitutional rights, and he seeks appointment of counsel to "investigate the prosecution's case" and avoid the time-bar.
Habeas is the "exclusive remedy" for the prisoner who seeks "'immediate or speedier release'" from confinement. Skinner v. Switzer, 562 U.S. 521, 533-34 (2011) (quoting Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)). A civil rights complaint seeking habeas relief should be dismissed without prejudice to bringing it as a petition for writ of habeas corpus. Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995). Plaintiff seeks appointment of counsel in order to overturn his conviction and obtain release from custody. As he ultimately seeks to challenge his conviction and be released from custody, the relief he seeks must be pursued in a habeas petition, not in a civil rights case. While he is subject to the AEDPA provisions regarding timely and successive petitions, he may seek to avoid the former by showing "actual innocence," see House v. Bell, 547 U.S. 518, 539 (2006), and the latter by obtaining the necessary certification from the United States Court of Appeal for the Ninth Circuit, see 28 U.S.C. § 2244(b)(2)(B)(ii).
For the foregoing reasons, the instant case is DISMISSED without prejudice to seeking federal habeas relief.
The clerk shall enter judgment and close the file.
IT IS SO ORDERED. Dated: February 1, 2018.
/s/_________
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE