German-Barraza v. United States ( 2021 )

1 WO JL 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jose German-Barraza, No. CV 21-01250-PHX-MTL (MTM) 10 Petitioner, 11 v. ORDER 12 United States of America, 13 Respondent. 14 15 Petitioner Jose German-Barraza, who is confined in the Red Rock Correctional 16 Center in Eloy, Arizona, has filed a pro se document (Doc. 1), in which he requests that his 17 state sentence run concurrently with his previous federal sentence. The Court will 18 summarily dismiss this action. 19 On May 31, 2011, Petitioner pleaded guilty to one count of illegal re-entry, and on 20 June 2, 2011, he was sentenced to a 60-day term of imprisonment. See United States v. 21 German-Barraza, CR 11-01985-TUC-DTF (D. Ariz. 2011). 22 On May 12, 2021, Petitioner pleaded guilty in Yavapai County Superior Court case 23 #P-1300-CR-202001242 to one count of transportation of a dangerous drug and was 24 sentenced to an eight-year term of imprisonment.1 Petitioner’s of-right post-conviction 25 relief proceeding has not commenced. See Ariz. R. Crim. P. 32.4, 32.7. 26 27 1 See https://apps.supremecourt.az.gov/publicaccess/caselookup.aspx (search by 28 case number P-1300-CR-202001242 in Yavapai County Superior Court) (last accessed July 20, 2021); https://corrections.az.gov/public-resources/inmate-datasearch (search by Inmate Number 348614 in Active Inmates) (last accessed July 20, 2021). 1 Before the court may grant habeas relief to a state prisoner, the prisoner must 2 exhaust remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O’Sullivan v. 3 Boerckel, 526 U.S. 838, 842 (1999). An Arizona petitioner sentenced to less than the 4 death penalty may exhaust his federal claims by presenting them in a procedurally proper 5 way to the Arizona Court of Appeals on direct appeal and/or in post-conviction 6 proceedings, without seeking discretionary review in the Arizona Supreme Court. Crowell 7 v. Knowles, 483 F. Supp. 2d 925, 928-30, 933 (D. Ariz. 2007) (following 1989 statutory 8 amendment, Arizona Court of Appeals has jurisdiction over criminal convictions involving 9 less than a death sentence); cf. Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999) 10 (citing pre-1989 statute). To exhaust a claim, a petitioner must describe “both the operative 11 facts and the federal legal theory on which his claim is based so that the state courts [could] 12 have a ‘fair opportunity’ to apply controlling legal principles to the facts bearing upon his 13 constitutional claim.” Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005) (quoting 14 Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003), overruled in part on other grounds by 15 Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007)). The failure to exhaust subjects the 16 Petition to dismissal. See Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). 17 If a prisoner has a direct appeal or initial petition for post-conviction relief pending 18 in state court, the federal exhaustion requirement is not satisfied. See Sherwood v. Tomkins, 19 716 F.2d 632, 634 (9th Cir. 1983) (pending appeal); Schnepp v. Oregon, 333 F.2d 288, 288 20 (9th Cir. 1964) (pending post-conviction proceeding); see also Henderson v. Johnson, 710 21 F.3d 872, 874 (9th Cir. 2013) (“Sherwood stands for the proposition that a district court 22 may not adjudicate a federal habeas petition while a petitioner’s direct state appeal is 23 pending”). The prisoner must await the outcome of the pending state-court challenge 24 before proceeding in federal court, “even where the issue to be challenged in the writ of 25 habeas corpus has been finally settled in the state courts.” Sherwood, 716 F.3d at 634. The 26 pending state-court proceeding could affect the conviction or sentence and, therefore, could 27 ultimately affect or moot these proceedings. Id. 28 Moreover, the abstention doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971), prevents a federal court in most circumstances from directly interfering with 2| ongoing criminal proceedings in state court and applies while the case works its way 3 | through the state appellate process. New Orleans Pub. Serv., Inc. v. Council of City of New 4} Orleans, 491 U.S. 350, 369 (1989) (“[flor Younger purposes, the State’s trial-and-appeals 5 | process is treated as a unitary system’); Huffman v. Pursue, Ltd., 420 U.S. 592, 608 (1975) 6| (“Virtually all of the evils at which Younger is directed would inhere in federal intervention 7 | prior to completion of state appellate proceedings, just as surely as they would if such 8 | intervention occurred at or before trial.”). “[O]nly in the most unusual circumstances is a defendant entitled to have federal interposition by way of injunction or habeas corpus until 10 | after the jury comes in, judgment has been appealed from and the case concluded in the 11 | state courts.” Drury v. Cox, 457 F.2d 764, 764-65 (9th Cir. 1972) (per curiam). 12 Petitioner has failed to show special or extraordinary circumstances indicating that 13 | he will suffer irreparable harm if this Court abstains from hearing his claims until after he 14| has achance to present them to the state courts. See Younger, 401 U.S. at 45-46; Carden, 15 | 626 F.2d at 83-84. Thus, the Court will abstain from interfering in Petitioner’s ongoing 16 | state-court criminal proceedings and will dismiss the Petition and this action as premature. 17| ITIS ORDERED: 18 (1) Petitioner’s document (Doc. 1) and this case are dismissed without 19 | prejudice. 20 (2) The Clerk of Court must enter judgment accordingly and close this case. 21 (3) Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the 22 | event Petitioner files an appeal, the Court declines to issue a certificate of appealability 23 | because reasonable jurists would not find the Court’s procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 25 Dated this 23rd day of July, 2021. Wichadl T. dibund Michael T. Liburdi 28 United States District Judge -3-