United States District Court, D. Oregon
BENJAMIN JAY BARBER; JAY DAVID LEATHERWOOD; and JAYCOB PATRICK HOLTEN, Petitioners,
PAT GARRETT, Sheriff, Respondent.
Benjamin Barber, an inmate at the Washington County Jail,
purports to bring this action challenging the
constitutionality of convictions obtained against all three
Petitioners in Washington County Circuit Court. Currently
before the Court are the "Petition for Post Conviction
Relief filed to initiate this action, as well as several
motions subsequently filed by Petitioner Barber.
Petition for Post Conviction Relief/Removal
the Court notes that although Petitioner Barber names two
additional Petitioners in the caption of the Petition,
neither of these two individuals submitted the $5, 00 filing
fee or an in forma pauperis application, or signed
the Petition. Accordingly, the Court DISMISSES the claims of
Petitioners Leatherwood and Holten. See 28 U.S.C.
§§ 1914 & 1915 (filing fee and in forma
pauperis requirements); Storseth v. Spellman,
654 F.2d 1349, 1355 (9th Cir. 1981) (a non-lawyer may not
file papers with the court or otherwise represent the rights
of another pro se litigant); Rule 2(c)(5), Rules
Governing Sec. 2254 Cases, 28 U.S.C. foll..§ 2254
(habeas petition must be signed under penalty of perjury by
the petitioner or by a person authorized to sign it for
the petitioner under 28 U.S.C. § 2241) (emphasis
Petitioner Barber's claims, the Court notes that
Petitioner initiated this action by filing a "Petition
for Post Conviction Relief under Oregon Revised Statutes
§§ 138.510-680, which he seeks to
"remove" to this Court under 28 U.S.C. §§
1338(a)& 1454. First, a challenge to the legality of a
state court conviction may be brought in federal court only
through an application for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. See 28 U.S.C. § 2254.
Second, the removal statute cited by Petitioner Barber, 28
U.S.C. § 1454, applies only to the removal of "[a]
civil action in which any party asserts a claim for relief
arising under any Act of Congress relating to patents, plant
variety protections, or copyrights." The "Petition
for State Post-Conviction Relief' referenced by
Petitioner Barber does not fall within the purview of §
1454. Third, 28 U.S.C. § 1338(a) vests in the district
court "original jurisdiction of any civil action arising
under any Act of Congress relating to patents, plant variety
protection, copyrights and trademarks." As with the
removal statute, Petitioner's claims do not fall within
the purview of § 1338(a).
extent Petitioner Barber's claims are construed as an
attempt to seek habeas corpus relief under 28 U.S.C. §
2254, the Petition does not comply with Rule 2(d) of the
Rules Governing Sec. 2254 cases: "The petition must
substantially follow either the form appended to these rules
or a form prescribed by a local district-court rule,"
See also Local Rule 81-1 (a) ("Petitions for a
writ of habeas corpus pursuant to 28 U.S.C. §§ 2241
and 2254 ... must be legibly written or typewritten on forms
supplied by the Court").
to the extent Petitioner Barber seeks state post-conviction
relief on behalf of himself or the other named Petitioners,
the Court DENIES the Petition (ECF No. 1). If Petitioner
Barber wishes to pursue an application for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 challenging the
legality of his conviction, Petitioner must file his
application on the form provided by this Court within 30 days
of the date of this Order. Failure to do so will result in
the dismissal of this action.
Motion for Appointment of Counsel (ECF No. 6)
an evidentiary hearing is required, the decision to appoint
counsel in a § 2254 proceeding is within the discretion
of the district court. Terrovona v. Kincheloe, 852
F.2d 424, 429 (9th Cir. 1988); Knaubert v.
Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). This
discretion is exercised in favor of an appointment if the
circumstances of the case indicate that counsel is necessary
to prevent due process violations or if the court determines
"'that the interests of justice require.'"
Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986)
(quoting 18 U.S.C. § 3OO6A(g)); Knaubert, 791
F.2d at 728-29. The interests of justice do not require the
appointment of counsel at this juncture of this case.
Accordingly, the Court DENIES Petitioner Barber's Motion
for Counsel (ECF No. 7.
Motions for Joinder and Motion to Proceed as a Class Action
(ECF Nos. 8, 9, and 10)
Barber seeks to "join"" as additional
Petitioners Jay Leatherwood and Jaycob Patrick Holten. (ECF
Nos. 9 and 10). The Court DENIES these motions, without
prejudice to Leatherwood and Holten's right to each file
a separate application for writ of habeas coipus challenging
their state court convictions, if appropriate. Petitioner
Barber also seeks to certify this case a class action
representing anyone who has been or may be charged with
violating Or. Rev. Stat. § 163.472. (ECF No. 8) The
Court DENIES this motion because an incarcerated, pro
se individual is not suitable to act as a class
representative and because, to the extent the Court construes
this action as seeking habeas relief under § 2254,
Petitioner Barber may not advance the claims of other
Motion for Three Judge Panel and Motions for Preliminary
Injunction and Temporary Restraining Order (ECF Nos. 7, 11,
12, 13, 14, and 15)
Barber moves to convene a three judge panel under 28 U.S.C.
§ 2284 and 17 U.S.C. § 502 to permanently enjoin
operation of Or. Rev. Stat. § 163.472 as violative of
federal law. The Court DENIES these motions, because to the
extent this action is construed as seeking relief under 28
U.S.C. § 2254, the sole remedy is the determination of
the legality of Plaintiff Barber's state court
conviction; Plaintiff ...