Jose Mitchell v. R. C. Johnson ( 2020 )

1 2 3 O 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOSE MITCHELL, Case No. 2:20-cv-05358-MWF-KES 12 Petitioner, ORDER DISMISSING PETITION 13 v. WITHOUT PREJUDICE 14 R. C. JOHNSON, Warden, 15 Respondent. 16 17 18 I. 19 INTRODUCTION 20 On June 16, 2020, the Court received a petition for writ of habeas corpus by 21 a person in state custody under 28 U.S.C. § 2254 (“Petition” at Dkt. 1) from Jose 22 Mitchell (“Petitioner”). Because Petitioner is currently awaiting resentencing in 23 state trial court, this Court declines to decide the Petition at this time. Accordingly, 24 the Petition is dismissed without prejudice. Petitioner may file a new petition in 25 federal court when the state court proceedings regarding his convictions and 26 sentence have concluded. 27 28 1 II. 2 PROCEDURAL HISTORY 3 A. Proceedings in State Court 4 The Petition challenges Petitioner’s convictions for conspiracy, second 5 degree robbery, and attempted second degree robbery in Los Angeles Superior 6 Court case no. YA091753. (Pet. at 2 ¶ 2.) 7 On October 11, 2018, the California Court of Appeal affirmed these 8 convictions. People v. Mitchell, No. B281476, 2018 Cal. App. Unpub. LEXIS 9 6911 (Oct. 11, 2018). However, on January 16, 2019, the California Supreme 10 Court granted Petitioner’s request for review and transferred the case back to the 11 California Court of Appeal “with directions to vacate its decision and reconsider the 12 cause in light of Senate Bill No. 1393 (Stats. 2018, Ch. 1013).” People v. Mitchell, 13 No. S252559, 2019 Cal. LEXIS 296 at *1 (Jan. 16, 2019). Senate Bill No. 1393 14 granted California trial courts discretion to strike certain sentencing enhancements. 15 Mitchell, 2019 Cal. App. Unpub. LEXIS 2385 at *43. 16 On April 5, 2019, the California Court of Appeal issued a new decision again 17 affirming Petitioner’s convictions, but finding that he was “entitled to a new 18 sentencing hearing at which the trial court can consider whether to strike the 19 recidivist enhancement pursuant to Penal Code section 667, subdivision (a)(1).” Id 20 at *44. 21 B. Proceedings in Federal Court 22 The Court construes the Petition as raising the same claims that Petitioner 23 raised on direct appeal, which are as follows: 24 Ground One: Petitioner’s rights to due process and an impartial jury 25 were violated because the jury panel was tainted by comments and 26 discussions about his probation violation case. 27 Ground Two: Petitioner’s due process rights were violated because 28 there was insufficient evidence to support any of his convictions. 1 (Pet. at 3-10); see also People v. Mitchell, No. B281476, 2019 Cal. App. Unpub. 2 LEXIS 2385 at *30, 33 (Apr. 5, 2019). 3 On June 18, 2020, this Court ordered Petitioner to show cause why the 4 Petition should not be dismissed without prejudice due to the ongoing state court 5 proceedings. (Dkt. 4.) The Court noted that, based on public records from the Los 6 Angeles Superior Court, it appeared that the new sentencing hearing had not yet 7 taken place. See Los Angeles Superior Court Criminal Case Summary, Case No. 8 YA091753-02.1 The Court ordered Petitioner to respond to the order to show cause 9 by: (1) stating when he had been resentenced, (2) explaining why this Court should 10 consider the Petition even though he has not been resentenced, or (3) filing a notice 11 of voluntary dismissal. (Dkt. 4 at 4.) 12 On July 29, 2020, Petitioner responded to the order to show cause with a 13 document entitled, “Notice of Request for an Extension of Time.” (Dkt. 5.) 14 Petitioner states that his resentencing has been postponed until September 22, 2020 15 due to the COVID-19 pandemic. (Id.) He appears to ask this Court to hear the 16 Petition, stating, “Petitioner requests if the current proceeding case is held within 17 the current district division per filing jurisdiction [sic].” (Id.) 18 III. 19 DISCUSSION 20 Under what is known as the Younger abstention doctrine, federal courts 21 generally do not intervene in ongoing state court criminal proceedings except in 22 “extraordinary circumstances.” Younger v. Harris, 401 U.S. 37, 43-54 (1971). A 23 federal court may consider sua sponte whether Younger abstention is appropriate. 24 H.C. ex rel. Gordon v. Koppel, 203 F.3d 610, 613 (9th Cir. 2000). 25 In Edelbacher v. Calderon, 160 F.3d 582 (9th Cir. 1998), the Ninth Circuit 26 considered “whether [a habeas] petitioner can challenge in federal court his state 27 1 Available online at: http://www.lacourt.org/onlineservices/ON0001.aspx 28 1 conviction of guilt when he has exhausted all potential state remedies with regard to 2 his guilt, but not his sentence, the retrial of which is proceeding in the state court.” 3 Id. at 583-84. The Ninth Circuit concluded that generally “a petitioner must await 4 the outcome of the state proceedings before commencing his federal habeas corpus 5 action,” unless there are “unusual circumstances[.]” Id. at 582-83. The court noted 6 that the petitioner in Edelbacher had not shown that delays in resentencing were 7 “extreme, unusual, or attributable to the ineffectiveness of the state courts.” Id. at 8 586-87 (distinguishing Phillips v. Vasquez, 56 F.3d 1030 (9th Cir. 1995)). “Since 9 Edelbacher, district courts have generally abstained under Younger when a habeas 10 petitioner was still challenging his sentence in state court.” Lesopravsky v. 11 Warden, No. 16-cv-7110-JPR, 2018 U.S. Dist. LEXIS 75239 at *11-12, 2018 WL 12 2085333 at *4 (C.D. Cal. May 3, 2018) (collecting cases). 13 In the present case, Petitioner has not shown unusual circumstances that 14 justify a departure from the general rule. It is true that the COVID-19 pandemic is 15 an unusual circumstance, but the delay of about a year and a half is, so far, not 16 extreme. Compare Coe v. Thurman, 922 F.2d 528, 531 (9th Cir. 1990) (finding 17 four-year delay between filing of notice of appeal and submission of case to state 18 appellate court “alarming”). 19 The present dismissal does not bar Petitioner from filing a new habeas 20 petition in federal court after he is resentenced and any appeal of his new sentence 21 in the state appellate courts has concluded. See United States v. Buenrostro, 895 22 F.3d 1160, 1165 (9th Cir.) (“A judicial resentencing may ... produce a new 23 judgment” which “may be challenged without regard to the limitation on second-or- 24 successive petitions ‘even if the [second-in-time] petition challenges only 25 undisturbed portions of the original judgment.’”), cert. denied, 139 S. Ct. 438 26 (2018). Significantly, because a new criminal judgment has not yet been entered, 27 28 U.S.C. § 2244(d)’s one-year limitations period for filing a federal habeas 28 petition under 28 U.S.C. § 2254 has not yet begin to run. See Burton v. Stewart, 1 | 549 U.S. 147, 156-57 (2007) (“Burton’s limitations period did not begin until both 2 | his conviction and sentence ‘became final by the conclusion of direct review or the 3 || expiration of the time for seeking such review’”’). 4 IV. 5 CONCLUSION 6 Accordingly, IT IS HEREBY ORDERED that the request for extension of 7 | time (Dkt. 5) is denied and the Petition (Dkt. 1) is dismissed without prejudice. 9 | DATED: August 6, 2020 Y LM Viep A 10 MICHAEL W/FITZGERALD 4 UNITED STATES DISTRICT JUDGE Presented by: 13 4 Toews Seotty KAREN E. SCOTT 15 | United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28