Albert Burkley v. Francisco Jacquez ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 12 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALBERT BURKLEY, No. 20-55205
Petitioner-Appellant, D.C. No. 2:13-cv-00424-VAP-RNB
v.
FRANCISCO JACQUEZ, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Submitted June 2, 2020**
Before: LEAVY, PAEZ, and BENNETT, Circuit Judges.
California state prisoner Albert Burkley appeals pro se from the district
court’s order declaring him a vexatious litigant and requiring pre-filing review.
We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.
The magistrate judge recommended that Burkley be barred from “filing any
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
additional petitions, complaints, motions, or claims challenging the 1997 criminal
convictions and sentence.” The district judge’s order, however, is not limited to
actions challenging Burkley’s 1997 conviction and sentence; rather, it applies,
without qualification, to “any complaint, petition for writ of habeas corpus, or
motion for rehearing or relief from judgment in the United States District Court for
the Central District of California.” District courts must tailor a vexatious litigant
order “narrowly so as to closely fit the specific vice encountered.” Ringgold-
Lockhart v. County of L.A., 761 F.3d 1057, 1062 (9th Cir. 2014) (internal quotation
marks omitted). Because the district judge did not explain why it imposed a
broader restriction than the one recommended by the magistrate judge, we vacate
the vexatious litigant order and pre-filing restriction, and remand for the district
court to more narrowly tailor the order or explain why the broader order is
justified.
We do not address Burkley’s claims that his sentence was improperly
enhanced with an unconstitutional prior conviction and that he received ineffective
assistance of counsel because they are outside the scope of this appeal.
VACATED and REMANDED.
2 20-55205