(HC) Yocom v. Attorney General ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL A. YOCOM, Case No. 1:20-cv-00645-DAD-JDP 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO DISMISS FIRST AMENDED PETITION FOR 13 v. FAILURE TO EXHAUST 14 ATTORNEY GENERAL, OBJECTIONS DUE IN FOURTEEN DAYS 15 Respondent. ECF No. 15 16 17 Petitioner Michael A. Yocom, a state prisoner without counsel, seeks a writ of habeas 18 corpus under 28 U.S.C. § 2254. ECF No. 1. On May 11, 2020, we issued findings and 19 recommendations to dismiss the petition for failure to exhaust. ECF No. 10. In response, 20 petitioner moved to file an amended petition. ECF No. 11. We granted him leave to do so and 21 accordingly vacated our May 11, 2020 findings and recommendations. ECF Nos. 12, 14. 22 Petitioner’s first amended petition, ECF No. 15, is now before us for review under Rule 4 of the 23 Rules Governing Section 2254 Cases. Under Rule 4, a district court must dismiss a habeas 24 petition if it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. 25 Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th 26 Cir. 1998). 27 28 1 Discussion 2 In his amended petition, just as in his original petition, petitioner states that his direct 3 appeal is pending before the state court. See ECF No. 15 at 2; People v. Yocom, No. F077786 4 (Cal. Ct. App. July 13, 2018). In Younger v. Harris, 401 U.S. 37, 44 (1971), the Supreme Court 5 held that a federal court generally cannot interfere with pending state criminal proceedings. This 6 holding, commonly referred to as the Younger abstention doctrine, is based on the principle of 7 federal-state comity. See id. In the habeas context, “[w]here . . . no final judgment has been 8 entered in state court, the state court proceeding is plainly ongoing for purposes of Younger.” 9 Page v. King, 932 F.3d 898, 902 (9th Cir. 2019). Therefore, when an appeal of a state criminal 10 conviction is pending, “a would-be habeas corpus petitioner must await the outcome of his appeal 11 before his state remedies are exhausted, even where the issue to be challenged in the writ of 12 habeas corpus has been finally settled in the state courts.” Sherwood v. Tomkins, 716 F.2d 632, 13 634 (9th Cir. 1983); see Henderson v. Johnson, 710 F.3d 872, 874 (9th Cir. 2013) (“[A] district 14 court may not adjudicate a federal habeas petition while a petitioner’s direct state appeal is 15 pending.” ). Accordingly, we recommend that the petition be dismissed without prejudice to 16 refiling after the direct appeal is final.1 17 Certificate of Appealability 18 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 19 court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; 20 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing § 2254 Cases requires a 21 district court to issue or deny a certificate of appealability when entering a final order adverse to a 22 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 23 Cir. 1997). A certificate of appealability will not issue unless a petitioner makes “a substantial 24 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires 25 1 Petitioner is forewarned that absent rare circumstances, a federal habeas petition must be filed 26 within one year of “the date on which the judgment became final by the conclusion of direct 27 review or the expiration of the time for seeking such review,” 28 U.S.C. § 2244(d)(1)(A), and that his filing of the instant petition does not toll AEDPA’s statute of limitations, see Duncan v. 28 Walker, 533 U.S. 167, 181 (2001). wOoe AEE VE MMU LO POO Ie OY VM VI 1 | the petitioner to show that “jurists of reason could disagree with the district court’s resolution of 2 | his constitutional claims or that jurists could conclude the issues presented are adequate to 3 | deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord Slack v. 4 | McDaniel, 529 U.S. 473, 484 (2000). Here, petitioner has not made a substantial showing of the 5 | denial of a constitutional right. Thus, we recommend that the court not issue a certificate of 6 | appealability. 7 | Findings and Recommendations 8 For the foregoing reasons, we recommend that the court dismiss the petition. ECF No. 15. 9 | These findings and recommendations are submitted to the U.S. district judge presiding over the 10 | case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within fourteen days of the service of 11 | the findings and recommendations, the parties may file written objections to the findings and 12 | recommendations with the court and serve a copy on all parties. That document must be 13 || captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The presiding 14 | district judge will then review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C). 15 16 IT IS SO ORDERED. 17 ( Caan Dated: _ June 5, 2020 18 UNIT#D STATES MAGISTRATE JUDGE 19 20 | No. 206. 21 22 23 24 25 26 27 28