1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 RUBEN HERRERA, No. CV 24-0924-MRA (JPR)

12 Petitioner, ORDER ACCEPTING v. MAGISTRATE JUDGE’S REPORT 13 AND RECOMMENDATION 14 PEOPLE OF THE STATE OF CALIFORNIA, et al., 15 Respondents. 16

17 18 Pursuant to

, the Court has reviewed the Petition, the other 19 records on file herein, the Magistrate Judge’s Report and Recommendation (the 20 “Report”), and Petitioner’s Objections to the Report. 21 The Report recommends the dismissal of this action without prejudice 22 because Petitioner is attempting to challenge his judgment of conviction with an 23 unauthorized successive habeas petition or, to the extent Petitioner is challenging 24 the denial of his motions for DNA testing, his claim should be brought in a civil- 25 rights lawsuit, not a habeas petition. (ECF No. 31.) Petitioner’s Objections to the 26 Report (ECF No. 32) do not warrant a change to the Report’s findings or 27 recommendation. 28 1 Petitioner objects to the Report’s analysis of his claims for access to DNA testing. (ECF No. 32 at 6-7.) The objection is not responsive to the Report’s 2 analysis that a claim for DNA testing is properly pursued in a civil-rights action 3 rather than a habeas petition because success on the claim would gain Petitioner 4 only access to the evidence, not immediate release. (ECF No. 31 at 5.) 5 Petitioner includes sections in his objections entitled “Statutory Tolling,” 6 “Mailbox Rule,” and “Tolling (Postponing) the Deadline Date.” (ECF No. 32 at 8- 7 12.) These objections are not responsive to any findings in the current Report, 8 which does not recommend resolution of this case on the statute of limitations. 9 Petitioner objects that his request to proceed in forma pauperis was granted. 10 (ECF No. 32 at 12-13.) The grant of Petitioner’s request to proceed in forma 11 pauperis did not preclude the Magistrate Judge from finding that the Petition was an 12 impermissible successive petition and that the DNA claims were not cognizable in a 13 habeas action. 14 Petitioner objects that he was denied the appointment of counsel for this case. 15 (ECF No. 32 at 14-16.) Petitioner did not show that appointment of counsel was 16 warranted. (ECF No. 26.) He failed to show a likelihood of success on the merits 17 or an inability to articulate his claims as a pro se litigant in light of the moderate 18 complexity of the legal issues involved. (Id.) 19 Petitioner alleges violations of Brady v. Maryland,

(1963), and 20 of his constitutional right to present a defense. (ECF No. 32 at 18-19.) Because 21 these claims are impermissibly successive, the Court has no authority to consider 22 them. 23 The Court accepts the findings and recommendations of the Magistrate 24 Judge. 25 ACCORDINGLY, IT IS ORDERED THAT: 26 1. Respondent’s motion to dismiss is granted and the Petition is dismissed 27 without prejudice to its refiling should Petitioner secure the necessary 28 1 prior authorization from the Ninth Circuit Court of Appeals to file a 2 successive petition. 3 2. Judgment be entered consistent with this order. 4 3. The clerk serve this Order and the Judgment on all counsel or parties of 5 record. 6 7 || DATED: January 22, 2025 2% 8 of Be □□□□□□ "EMSRS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28