(HC) Castillo v. D'Agostini ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BERNARDO CASTILLO, No. 2:19-cv-1626 CKD P 12 Petitioner, 13 v. ORDER AND 14 JOHN D’AGOSTINI, FINDINGS AND RECOMMENDATIONS 15 Respondent. 16 17 Petitioner, an El Dorado County Jail pretrial detainee proceeding pro se, has filed a 18 petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 together with a request to 19 proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Examination of the request to proceed 20 in forma pauperis reveals that petitioner is unable to afford the costs of suit. Accordingly, the 21 request for leave to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a). 22 Under Rule 4 of the Rules Governing Section 2254 Cases, the court must review all 23 petitions for writ of habeas corpus and summarily dismiss any petition if it is plain that the 24 petitioner is not entitled to relief. The court has conducted that review. 25 Petitioner complains about ongoing criminal proceedings in El Dorado County. 26 However, challenges to ongoing criminal proceedings are generally barred by the doctrine set 27 forth in Younger v. Harris, 401 U.S. 37 (1971), and this court is precluded from granting habeas 28 relief until all available state court remedies have been exhausted. 28 U.S.C. § 2254(b)(1). For 1 | these reasons, the court cannot afford petitioner relief and must recommend that petitioner’s 2 | petition for writ of habeas corpus be summarily dismissed. 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. Petitioner’s request for leave to proceed in forma pauperis (ECF No. 5) is granted; and 5 2. The Clerk of the Court assign a district court judge to this case. 6 IT IS HEREBY RECOMMENDED that: 7 1. Petitioner’s petition for writ of habeas corpus be summarily dismissed; and 8 2. This case be closed. 9 These findings and recommendations are submitted to the United States District Judge 10 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 11 | after being served with these findings and recommendations, petitioner may file written 12 | objections with the court. Such a document should be captioned “Objections to Magistrate 13 || Judge’s Findings and Recommendations.” In his objections, petitioner may address whether a 14 | certificate of appealability should issue in the event he files an appeal of the judgment in this 15 | case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or 16 | deny acertificate of appealability when it enters a final order adverse to the applicant). Where, as 17 || here, a habeas petition is dismissed on procedural grounds, a certificate of appealability “should 18 | issue if the prisoner can show: (1) ‘that jurists of reason would find it debatable whether the 19 | district court was correct in its procedural ruling;’ and (2) ‘that jurists of reason would find it 20 | debatable whether the petition states a valid claim of the denial of a constitutional right.’” Morris 21 | v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484 22 | (2000)). Petitioner is advised that failure to file objections within the specified time may waive 23 | the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 24 | Dated: September 25, 2019 Ci ide f | fe 25 CAROLYN K DELANEY 26 UNITED STATES MAGISTRATE JUDGE 27 | 1 28 cast1626.114