(HC) Jackson v. Neuschmid ( 2019 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 KENNETH A. JACKSON, Case No. 1:19-cv-00357-LJO-SAB-HC 11 Petitioner, FINDINGS AND RECOMMENDATION TO GRANT RESPONDENT’S MOTION TO 12 v. DISMISS AND DISMISS WITHOUT PREJUDICE PETITION FOR WRIT OF 13 ROBERT NEUSCHMID, HABEAS CORPUS 14 Respondent. (ECF No. 12) 15 16 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 17 pursuant to 28 U.S.C. § 2254. 18 I. 19 BACKGROUND 20 On May 8, 2014, Petitioner was convicted after a jury trial in the Madera County 21 Superior Court of multiple counts of arson, conspiracy to commit arson, battery on a peace 22 officer, and resisting arrest. Petitioner was sentenced to an aggregate imprisonment term of thirty 23 years and eight months. (LDs1 1, 2). On July 17, 2018, the California Court of Appeal, Fifth 24 Appellate District affirmed Petitioner’s convictions for conspiracy to commit arson, battery on a 25 peace officer, resisting arrest, and arson on counts 9, 10, 21–31. The California Court of Appeal 26 reversed Petitioner’s convictions for arson on counts 5, 6, 11, 13–16, and 19 based on 27 insufficient evidence and remanded the matter back to the trial court for resentencing. (LD 2). 1 On October 24, 2018, the California Supreme Court denied Petitioner’s petition for review. 2 People v. Jackson, No. S250471 (Cal. Oct. 24, 2018).2 3 On March 29, 2019, Petitioner was resentenced to an imprisonment term of twenty years. 4 (LD 3). On April 4, 2019, Petitioner filed a notice of appeal. (LD 4). Petitioner’s appeal is 5 currently pending in the California Court of Appeal, Fifth Appellate District. People v. Jackson, 6 No. F079129 (Cal. Ct. App. filed Apr. 4, 2019).3 7 Meanwhile on March 18, 2019, Petitioner filed the instant federal petition for writ of 8 habeas corpus. (ECF No. 1). On May 31, 2019, Respondent filed a motion to dismiss the petition 9 pursuant to Younger v. Harris, 401 U.S. 37 (1971), based on Petitioner’s ongoing state criminal 10 appeal. (ECF No. 12). Petitioner filed an opposition, and Respondent filed a reply. (ECF Nos. 13, 11 15). 12 II. 13 DISCUSSION 14 “Younger abstention is a jurisprudential doctrine rooted in overlapping principles of 15 equity, comity, and federalism.” San Jose Silicon Valley Chamber of Commerce Political Action 16 Comm. v. City of San Jose, 546 F.3d 1087, 1091 (9th Cir. 2008). In Younger, the Supreme Court 17 held that when there is a pending state criminal proceeding, federal courts must refrain from 18 enjoining the state prosecution. Younger, 401 U.S. at 41; Sprint Commc’ns, Inc. v. Jacobs, 571 19 U.S. 69, 72 (2013). See also Kowalski v. Tesmer, 543 U.S. 125, 133 (2004) (“The doctrine of 20 Younger v. Harris . . . reinforces our federal scheme by preventing a state criminal defendant 21 from asserting ancillary challenges to ongoing state criminal procedures in federal court.”). 22 Petitioner argues that this Court should review the constitutionality of his convictions 23 because the ongoing state proceedings only concern his sentence. (ECF No. 13 at 2). Petitioner 24 2 Appellate Case Information, California Courts, http://appellatecases.courtinfo.ca.gov (search by “Case Number” 25 for “S250471”) (last visited Aug. 19, 2019). See Fed. R. Evid. 201(b)(2); U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (“[W]e ‘may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.’”) 26 (quoting St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979)); Worthy v. Hartley, No. 1:09-cv-01867-JLT HC, 2010 WL 1339215, *3 n.2 (E.D. Cal. Apr. 2, 2010) (“[T]he internet website for the 27 California Courts, containing the court system’s records for filings in the Court of Appeal and the California Supreme Court are subject to judicial notice.”). 3 Appellate Case Information, California Courts, http://appellatecases.courtinfo.ca.gov (search by “Case Number” 1 also claims that he continues to suffer irreparable harm from the lengthy appeals process. (Id. at 2 3). 3 “The Supreme Court has held that Younger abstention applies to prevent federal 4 intervention in a state judicial proceeding in which a losing litigant has not exhausted his state 5 appellate remedies.” Dubinka v. Judges of the Superior Court, 23 F.3d 218, 223 (9th Cir. 1994) 6 (citing Huffman v. Pursue, Ltd., 420 U.S. 592, 607–11 (1975)). See Henderson v. Johnson, 710 7 F.3d 872, 874 (9th Cir. 2013) (A “district court may not adjudicate a federal habeas petition 8 while a petitioner’s direct state appeal is pending.” (citing Sherwood v. Thompkins, 716 F.2d 9 632, 634 (9th Cir. 1983))). However, “[f]ederal courts will not abstain under Younger in 10 ‘extraordinary circumstances where irreparable injury can be shown.’” Page v. King, No. 17- 11 16364, 2019 WL 3520617, at *4 (9th Cir. Aug. 2, 2019) (quoting Brown v. Ahern, 676 F.3d 899, 12 903 (9th Cir. 2012)). Although the Ninth Circuit has “in rare cases declined to abstain where the 13 state court delay was extreme and there was ‘no end in sight’ to the state court proceedings,” the 14 Ninth Circuit has recognized that “Younger abstention is appropriate even in cases of extreme 15 delay where there is ‘no indication that the state court has been ineffective,’ and where the delay 16 is instead ‘attributable to the petitioner’s quite legitimate efforts in state court to escape guilt’ 17 through litigation.” Page, 2019 WL 3520617, at *4 (quoting Phillips v. Vasquez, 56 F.3d 1030, 18 1035, 1038 (9th Cir. 1995); Edelbacher v. Calderon, 160 F.3d 582, 586, 585 (9th Cir. 1998)). 19 Here, Petitioner currently has an appeal pending in the California Court of Appeal, Fifth 20 Appellate District. People v. Jackson, No. F079129 (Cal. Ct. App. filed Apr. 4, 2019). The delay 21 in Petitioner’s case has not been extreme and “actually had its source in the various quite 22 legitimate and proper appeals and rehearings which [Petitioner] sought and obtained.” 23 Edelbacher, 160 F.3d at 587. “When there is a pending state penalty retrial and no unusual 24 circumstances, we decline to depart from the general rule that a petitioner must await the 25 outcome of the state proceedings before commencing his federal habeas corpus action.” Id. at 26 582–83. Accordingly, Petitioner has failed to establish that the delay is an extraordinary 27 circumstance under Younger. 1 As Petitioner has an ongoing criminal proceeding in state court, the Court should abstain 2 | from interfering with the state judicial process pursuant to Younger, and the petition should be 3 | dismissed. 4 Ii. 5 RECOMMENDATION 6 Accordingly, the undersigned HEREBY RECOMMENDS that the motion to dismiss be 7 | GRANTED and the petition be DISMISSED without prejudice. 8 This Findings and Recommendation is submitted to the assigned United States District 9 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 10 | Rules of Practice for the United States District Court, Eastern District of California. Within 11 | THIRTY (30) days after service of the Findings and Recommendation, any party may file 12 | written objections with the court and serve a copy on all parties. Such a document should be 13 | captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the 14 | objections shall be served and filed within fourteen (14) days after service of the objections. The 15 | assigned District Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 16 | 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may 17 | waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 834, 839 18 | (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 IT IS SO ORDERED. OF. nf ee 21 | Dated: _ August 19, 2019 _ OO UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28