(HC) Miller v. Santoro ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MATTHEW COPELAND MILLER, No. 2:19-cv-1117 WBS DB P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 JEFF LYNCH,1 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se and in forma pauperis in this civil rights 18 action pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2014 conviction in the San Joaquin 19 County Superior Court for kidnapping for robbery, attempted second degree robbery, being a 20 felon in possession of a firearm, making criminal threats, unlawfully possessing ammunition, and 21 knowingly and maliciously attempting to dissuade a victim by force or threat. Petitioner seeks 22 relief here on the following grounds: (1) insufficiency of evidence that petitioner attempted to 23 dissuade a victim, (2) instructional error, (3) sentencing error, (4) a warrantless search violated 24 the Fourth Amendment, and (5) cumulative error. 25 26 27 1 Jeff Lynch, current warden of the California State Prison – Sacramento where petitioner is presently housed, is substituted as respondent. See Stanley v. California Supreme Court, 21 F.3d 28 359, 360 (9th Cir. 1994). 1 Respondent moves to dismiss the petition as barred by Younger v. Harris, 401 U.S. 37 2 (1971), and as unexhausted. Respondent also moves to dismiss petitioner’s Fourth Amendment 3 claim as not cognizable in this action. Petitioner opposes the motion and moves for a stay pending 4 exhaustion of his Fourth Amendment claim. 5 I. Procedural Background 6 On May 12, 2014, petitioner was sentenced to an indeterminate state prison term of thirty- 7 seven years to life following his conviction in the San Joaquin County Superior Court for 8 kidnapping for robbery, attempted second degree robbery, being a felon in possession of a 9 firearm, making criminal threats, unlawfully possessing ammunition, and knowingly and 10 maliciously attempting to dissuade a victim by force or threat. (Lod. Doc. 1.)2 11 On appeal, petitioner’s kidnapping conviction was reversed by the California Court of 12 Appeal and remanded to the trial court for resentencing. (Lod. Doc. 2.) The judgment was 13 affirmed in all other respects. On June 14, 2017, the California Supreme Court denied review. 14 (Lod. Docs. 3-4.) 15 On August 7, 2018, petitioner was resentenced to a determinate prison term of twenty- 16 seven years. (Lod. Doc. 5.) 17 On December 18, 2019, the California Court of Appeal remanded the matter to the trial 18 court to exercise its sentencing discretion under Senate Bill No. 1393. (Lod. Doc. 6.) The trial 19 court has not yet exercised its sentencing discretion on remand. (Lod. Doc. 7.) 20 II. Discussion 21 Respondent first moves to dismiss this action on the ground that petitioner’s state criminal 22 action remains pending since he has not yet been resentenced following the California appellate 23 court’s remand. Petitioner counters that any decision by this Court would not enjoin the 24 proceedings in the state court since the claims asserted here are unrelated to the basis for the 25 resentencing remand. 26 27 28 2 All lodged documents have been filed electronically. (ECF No. 21.) 1 Under what is known as the Younger abstention doctrine, federal courts generally do not 2 intervene in ongoing state court criminal proceedings except in “extraordinary circumstances.” 3 Younger v. Harris, 401 U.S. 37, 43-54 (1971). A federal court may consider sua sponte whether 4 Younger abstention is appropriate. H.C. ex rel. Gordon v. Koppel, 203 F.3d 610, 613 (9th Cir. 5 2000). 6 In Phillips v. Vasquez, 56 F.3d 1030 (9th Cir.1995), the Ninth Circuit considered whether 7 Younger abstention was warranted where a federal habeas petitioner’s capital conviction was 8 final, but his sentence was still being appealed. It reasoned: “The state has already adjudicated 9 Phillips' guilt, its decision in that regard is final, and Phillips seeks nothing more than federal 10 review of that decision. The ongoing state proceeding involves sentencing only, and the state is 11 free to continue with its sentencing determination.” Id. at 1033. In such circumstances, the court 12 concluded that the Younger doctrine did not preclude federal review of petitioner’s claims. 13 More recently, however, Phillips has been characterized as a narrow holding that turned 14 on the “unreasonably long delay” in the capital appeals process in Phillips’ case. Edelbacher v. 15 Calderon, 160 F.3d 582, 585-86 (9th Cir. 1998). In a case where no unusual delay existed, the 16 Ninth Circuit “decline[d] to depart from the general rule that a petitioner must await the outcome 17 of the state proceedings before commencing his federal habeas corpus action.” Id. at 582-83; see 18 id. at 586, n.5 (citing cases). See also Dean v. Sandor, 2011 WL 3652383 (C.D. Cal. July 12, 19 2011) (where federal petition challenges constitutionality of conviction, and direct appeal of 20 sentence is pending, Edelbacher controls, and petition must be dismissed pending outcome of 21 state proceedings) (findings and recommendations adopted by district court on August 18, 2011). 22 “Since Edelbacher, district courts have generally abstained under Younger when a habeas 23 petitioner was still challenging his sentence in state court.” Lesopravsky v. Warden, 2018 WL 24 2085333, at *4 (C.D. Cal. May 3, 2018) (collecting cases). 25 In this case, there are no “unusual circumstances” that would justify a departure from the 26 “general rule that a petitioner must await the outcome of the state proceedings before 27 commencing his federal habeas corpus action.” Edelbacher, 160 F.3d at 583. Unlike the 15-year 28 delay in Phillips, which was deemed “unreasonably long,” and the six-year delay in Edelbacher, 1 which was not, petitioner here has not identified any unusual delay or circumstances that would 2 justify departing from the general rule of abstention. Indeed, not even one year has lapsed from 3 the date that the California Court of Appeal remanded the matter to the trial court for 4 resentencing. Moreover, petitioner’s argument that his claims here should be allowed to proceed 5 because they are unrelated to his sentence has already been foreclosed by Edelbacher. 6 Respondent’s motion to dismiss pursuant to Younger should therefore be granted.3 7 The recommendation to dismiss does not bar petitioner from filing a new habeas petition 8 in federal court after he is resentenced and any appeal of his new sentence in the state appellate 9 courts has concluded. See United States v. Buenrostro, 895 F.3d 1160, 1165 (9th Cir.) (“A 10 judicial resentencing may ... produce a new judgment” which “may be challenged without regard 11 to the limitation on second-or-successive petitions ‘even if the [second-in-time] petition 12 challenges only undisturbed portions of the original judgment.’ ”), cert. denied, ––– U.S. ––––, 13 139 S. Ct. 438 (2018). Significantly, because a new criminal judgment has not yet been entered, 14 28 U.S.C. § 2244(d)'s one-year limitations period for filing a federal habeas petition under 28 15 U.S.C. § 2254 has not yet begin to run. See Burton v. Stewart, 549 U.S. 147, 156-57 (2007) 16 (“Burton’s limitations period did not begin until both his conviction and sentence ‘became final 17 by the conclusion of direct review or the expiration of the time for seeking such review’ ”). 18 III. Conclusion 19 Based on the foregoing, IT IS HEREBY RECOMMENDED that respondent’s motion to 20 dismiss (ECF No. 19) be granted and the petition for writ of habeas corpus be dismissed without 21 prejudice. 22 These findings and recommendations are submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 24 after being served with these findings and recommendations, petitioner may file written 25 objections with the court and serve a copy on all parties. Such a document should be captioned 26 “Objections to Magistrate Judge’s Findings and Recommendations.” Petitioner is advised that 27 3 In light of this recommendation, the Court declines to consider respondent’s alternative 28 arguments for dismissal and petitioner’s request for a stay and abeyance. WAS 2.47 UV VES SEO ROE MUO ey POO □□□ □□ FP VY VI 1 | failure to file objections within the specified time may waive the right to appeal the District 2 | Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 | Dated: August 25, 2020 4 5 6 ORAH BARNES UNITED STATES MAGISTRATE JUDGE /DLB7; g_ | DB/nbox/Substantive/mill1 17.mtd 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28