(HC) Embry v. Johnson ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MONTY EMBRY, ) Case No.: 1:21-cv-00082-NONE-JLT (HC) ) 12 Petitioner, ) FINDINGS AND RECOMMENDATION TO ) DISMISS PETITION 13 v. ) ) FINDINGS AND RECOMMENDATION TO 14 R. JOHNSON, Warden of CSP-LAC, ) DENY PETITIONER’S MOTION FOR STAY OF 15 Respondent. ) PROCEEDINGS (Doc. 3) ) 16 ) [TWENTY-ONE DAY DEADLINE] 17 On January 21, 2021, Petitioner filed the instant petition for writ of habeas corpus challenging 18 his 2017 conviction in Kern County Superior Court. (Doc. 1.) Petitioner also filed a motion for stay 19 and abeyance. (Doc. 3.) Pursuant to the Court’s order, Respondent filed an opposition to the motion to 20 stay on March 3, 2021. (Doc. 7.) Petitioner filed a reply on March 18, 2021. (Doc. 9.) Respondent 21 contends that this Court should abstain from interfering with the ongoing state proceedings pursuant to 22 Younger v. Harris, 401 U.S. 37 (1971), and dismiss the habeas petition as unexhausted. (See Doc. 7.) 23 The Court recommends that Petitioner’s motion for a stay be DENIED and the petition be 24 DISMISSED. 25 DISCUSSION 26 A. Preliminary Review of Petition 27 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition 28 if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to 1 relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. The Advisory 2 Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus, 3 either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an 4 answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001). 5 B. Background 6 Petitioner was convicted in Kern County Superior Court of second-degree murder, assault with 7 a firearm, reckless discharge of a firearm, and carrying a concealed weapon in a vehicle. (LD1 8-1.) A 8 number of sentencing enhancement allegations were found true. (Id.) On March 29, 2017, Petitioner 9 was sentenced to an indeterminate state prison term of fifty-five years to life, plus a determinate state 10 prison term of twenty-eight years. (Id.) Petitioner appealed the judgment. 11 On July 24, 2019, the California Court of Appeal, Fifth Appellate District vacated the sentence 12 and remanded the matter to the trial court for resentencing pursuant to 1) sections 12022.5(c) and 13 12022.53(h), as amended by Senate Bill 620 (which gave the trial court discretion to strike firearm 14 enhancements), and 2) sections 667(a) and 1385(b), as amended by Senate Bill 1393 (which gave the 15 trial court discretion to strike prior serious felony enhancements). (LD 8-2.) The judgment was 16 affirmed in all other respects. (Id.) Review was denied by the California Supreme Court on October 17 23, 2019. (LD 8-3, LD 8-4.) 18 On January 16, 2020, the trial court denied Petitioner’s request to strike the firearm and prior 19 serious felony enhancements. (LD 8-5.) The trial court imposed the sentence originally imposed. (Id.) 20 Petitioner appealed the new judgment and state appellate proceedings are ongoing. (LD 8-6.) 21 Petitioner has not filed any state post-conviction collateral actions challenging the judgment. (Doc. 7 22 at 2.) Petitioner filed the instant federal habeas petition and his motion for stay on January 21, 2021. 23 (Docs. 1, 3.) 24 C. Motion for Stay 25 A district court has discretion to stay a mixed petition and allow a petitioner to return to state 26 court to exhaust state remedies. Rhines v. Weber, 544 U.S. 269, 277 (2005). However, the Supreme 27 28 1 1 Court has held that this discretion is circumscribed by the Antiterrorism and Effective Death Penalty 2 Act of 1996 (AEDPA). Id. In light of AEDPA’s objectives, “stay and abeyance [is] available only in 3 limited circumstances.” Id. at 277. Specifically, the Court said a stay is appropriate only when (1) 4 good cause exists for petitioner’s failure to exhaust; (2) petitioner’s unexhausted claims are not 5 “plainly meritless” and (3) there is no indication that petitioner engaged in “abusive litigation tactics 6 or intentional delay.” Id. at 277-78; Robbins v. Carey, 481 F.3d 1143, 1149 (9th Cir. 2005). When a 7 petitioner has met these requirements, his interest in obtaining federal review of his claims outweighs 8 the competing interests in finality and speedy resolution of federal petitions. Rhines, 544 U.S. at 278. 9 In his motion to stay, Petitioner requests that this Court stay these proceedings under Rhines v. 10 Weber, 544 U.S. 269 (2005). (Doc. 3.) However, the state proceedings are still ongoing, and 11 Petitioner’s judgment is not yet final. Petitioner admits that “a [s]tate case is not yet final when direct 12 appeal proceedings restart.” (Id. at 3.) As discussed further below, under Younger a federal court 13 should not interfere with ongoing state criminal proceedings. Accordingly, Petitioner’s motion for a 14 stay is DENIED. 15 D. Younger Abstention 16 Under principles of comity and federalism, a federal court should not interfere with ongoing 17 state criminal proceedings by granting injunctive or declaratory relief except under special 18 circumstances. Younger v. Harris, 401 U.S. 37, 43-54 (1971). Younger abstention is required when: 19 (1) state proceedings, judicial in nature, are pending; (2) the state proceedings involve important state 20 interests; and (3) the state proceedings afford adequate opportunity to raise the constitutional issue. 21 Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982); Dubinka v. 22 Judges of the Superior Court, 23 F.3d 218, 223 (9th Cir. 1994). The rationale of Younger applies 23 throughout the appellate proceedings, requiring that state appellate review of a state court judgment be 24 exhausted before federal court intervention is permitted. Dubinka, 23 F.3d at 223 (even if criminal 25 trials were completed at time of abstention decision, state court proceedings still considered pending). 26 The law of habeas corpus also provides guidance on when a district court should abstain from 27 review of a claim. In order to be granted federal habeas corpus relief, the petition must have 28 exhausted his available state remedies. 28 U.S.C. § 2254(b). The rule of exhaustion is based on 1 comity to the state court and gives the state court the initial opportunity to correct the state’s alleged 2 constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion 3 requirement can be satisfied by providing the highest state court with a full and fair opportunity to 4 consider each claim before presenting it to the federal court. Picard v. Connor, 404 U.S. 270, 276 5 (1971). 6 In the instant case, state proceedings are ongoing. The Fifth District has not yet confirmed the 7 judgment. California has an important interest in passing upon and correcting violations of a 8 defendant’s rights. Roberts v. Dicarlo, 296 F.Supp.2d 1182, 1185 (C.D. Cal. 2002) (citing Koerner v. 9 Grigas, 328 F.3d 1039, 1046 (9th Cir. 2003)). The state courts are adequate forums for Petitioner to 10 seek relief for his claims and he has not availed himself of those avenues for relief. Roberts, 296 11 F.Supp.2d at 1185. Therefore, the Court recommends abstaining from interfering in state proceedings 12 pursuant to Younger. Additionally, Petitioner admits that his petition is not fully exhausted. (Doc. 1 13 at 14; Doc. 3 at 2.) The petition should be dismissed without prejudice. 14 RECOMMENDATION 15 Accordingly, the Court RECOMMENDS that Petitioner’s motion for a stay be DENIED and 16 the petition be DISMISSED WITHOUT PREJUDICE. 17 This Findings and Recommendation is submitted to the United States District Court Judge 18 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the 19 Local Rules of Practice for the United States District Court, Eastern District of California. Within 20 twenty-one days after being served with a copy, any party may file written objections with the Court. 21 Such a document should be captioned “Objections to Magistrate Judge’s Findings and 22 Recommendation.” Replies to objections must be filed within ten court days of the date of service of 23 any objections. The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 24 (b)(1)(C). 25 /// 26 /// 27 /// 28 /// 1 The parties are forewarned that failure to file objections within the specified time may waive 2 the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 4 IT IS SO ORDERED. 5 Dated: March 27, 2021 /s/ Jennifer L. Thurston 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28