(HC) Jerome M. Davis v. Bolanos ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEROME MARKIEL DAVIS, No. 2:19-cv-0408 JAM CKD P 12 Petitioner, 13 v. FINDINGS & RECOMMENDATIONS 14 CARLOS BOLANOS, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. Currently pending before the court is respondent’s motion 19 to dismiss the petition as premature. (ECF No. 13.) 20 I. Factual and Procedural Background 21 On February 7, 2017, petitioner was convicted of attempted murder, assault with a 22 firearm, grossly negligent discharge of a firearm, and discharge of a firearm at an inhabited 23 dwelling, along with gang and firearm enhancements, in Sacramento County Superior Court case 24 number 15F02816. (ECF No. 1 at 1; ECF No. 14-1.) He received a determinate sentence of 25 seventeen years and three months and an indeterminate sentence of twenty-five years to life. (Id.) 26 Petitioner appealed his sentence and on September 28, 2018, the California Court of 27 Appeal, Third Appellate District vacated petitioner’s sentence and remanded to the trial court for 28 resentencing, but otherwise affirmed the judgment. (ECF No. 14-2 at 12.) 1 On October 29, 2018, petitioner filed a petition for review in the California Supreme 2 Court (ECF No. 14-3), which was denied on December 12, 2018 (ECF No. 14-4). 3 According to the Sacramento County Superior Court’s docket,1 petitioner was resentenced 4 and judgment was entered on September 20, 2019.2 The docket for the California Court of 5 Appeal, Third Appellate District shows that petitioner filed an appeal and the appeal is currently 6 pending.3 7 II. Motion to Dismiss 8 Respondent moves to dismiss the petition on the ground that it is premature and barred by 9 Younger v. Harris, 401 U.S. 37 (1971), because petitioner’s resentencing proceedings are 10 currently pending. (ECF No. 13.) In his opposition, petitioner admits that resentencing was 11 pending at that time, but argues that his case should not be dismissed because he has exhausted 12 his state court remedies; he is challenging his conviction, not his sentence; and the statute of 13 limitations would bar him from re-filing if the instant petition is dismissed. (ECF No. 15.) 14 Under Younger v. Harris, 401 U.S. 37 (1971), federal courts may not interfere with a 15 pending state criminal case. “Younger abstention is a jurisprudential doctrine rooted in 16 overlapping principles of equity, comity, and federalism.” San Jose Silicon Valley Chamber of 17 Commerce Political Action Comm. v. City of San Jose, 546 F.3d 1087, 1091 (9th Cir. 2008) 18 (citations and footnote omitted). Younger abstention is required when the following requirements 19 are met: 20 (1) a state-initiated proceeding is ongoing; (2) the proceeding implicates important state interests; (3) the federal plaintiff is not 21 barred from litigating federal constitutional issues in the state 22 1 The court may properly take judicial notice of state court dockets, including those found on the 23 internet. Porter v. Ollison, 620 F.3d 952, 954-55 (9th Cir. 2010) (footnote and citations omitted); Fed. R. Evid. 201(b)(2)). 24 2 Sacramento Superior Court docket for case number 15F02816 available at https://services.saccourt.ca.gov/PublicCaseAccess/Criminal/CaseDetails?sourceSystemId=8&sou 25 rceKey=1517993. 3 California Court of Appeal, Third Appellate District docket for case number C090521 available 26 at 27 https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=3&doc_id=2299206&doc_n o=C090521&request_token=NiIwLSEmXkw9WyBJSCM9XEtIUFw6UTxbKiJeUzhTICAgCg% 28 3D%3D. 1 proceeding; and (4) the federal court action would enjoin the proceeding or have the practical effect of doing so, i.e., would 2 interfere with the state proceeding in a way that Younger disapproves. 3 4 Id. at 1092 (citations omitted). This principle applies equally to appellate and trial proceedings. 5 Huffman v. Pursue, Ltd., 420 U.S. 592, 608-09 (1975). 6 At the time the motion to dismiss was filed, petitioner had not yet been resentenced. 7 While petitioner has now been resentenced, that judgment is on direct appeal in the state court. 8 “‘Final judgment in a criminal case means sentence. The sentence is the judgment,’” Burton v. 9 Stewart, 549 U.S. 147, 156 (2007) (quoting Berman v. United States, 302 U.S. 211, 212 (1937)), 10 and in the habeas context, “judgment [becomes] final by the conclusion of direct review or the 11 expiration of the time for seeking such review,” 28 U.S.C. § 2244(d)(1)(A). Accordingly, state 12 proceedings are still ongoing and petitioner’s judgment is not yet final, satisfying the first 13 requirement for Younger abstention. 14 The second requirement for Younger abstention is also met because “state criminal 15 proceedings implicate important state interests.” Lazarus v. Baca, 389 F. App’x 700, 701 (9th 16 Cir. 2010) (citing Kelly v. Robinson, 479 U.S. 36, 49 (1986); Rose v. Mitchell, 443 U.S. 545, 585 17 (1979); Younger, 401 U.S. at 43-44). 18 Finally, there is no indication that petitioner has been barred from pursuing his 19 constitutional claims in state court, as he alleges that they are in fact exhausted, and allowing him 20 to proceed in federal court before the conclusion of his state court proceedings would constitute 21 the kind of interference of which Younger disapproves. Drury v. Cox, 457 F.2d 764, 764-65 (9th 22 Cir. 1972) (per curiam) (“[O]nly in the most unusual circumstances is a defendant entitled to have 23 federal interposition by way of injunction or habeas corpus until after the jury comes in, judgment 24 has been appealed from and the case concluded in the state courts. Apparent finality of one issue 25 is not enough.”). 26 To the extent petitioner expresses concern over the statute of limitations, because his 27 judgment is not yet final, the statute of limitations has not yet begun to run, and he will therefore 28 suffer no prejudice as a result of dismissal of the petition. Burton, 549 U.S. at 156-57 (statute of 1 | limitations under § 2244(d)(1)(A) does not begin to run until both conviction and sentence 2 || become final). 3 For these reasons, Younger abstention is required and it will be recommended that the 4 | petition be dismissed without prejudice. 5 Accordingly, IT IS HEREBY RECOMMENDED that: 6 1. Petitioner’s application for a writ of habeas corpus be dismissed without prejudice. 7 2. This court decline to issue the certificate of appealability referenced in 28 U.S.C. 8 | § 2253. 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)(). Within fourteen days 11 | after being served with these findings and recommendations, any party may file written 12 | objections with the court and serve a copy on all parties. Such a document should be captioned 13 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 14 | objections shall be filed and served within fourteen days after service of the objections. The 15 | parties are advised that failure to file objections within the specified time may waive the right to 16 | appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 17 | Dated: February 12, 2020 CA rd ht / (g—, CAROLYN K.DELANEY 19 UNITED STATES MAGISTRATE JUDGE 20 |] 13:davi0408.mtd.he.f&r 21 22 23 24 25 26 27 28