(HC) Marroquin v. People of the State of California ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NICOLAS ANDRES MARROQUIN, Case No. 1:21-cv-01735-JLT-HBK (HC) 12 Petitioner, ORDER GRANTING RESPONDENT'S MOTION TO MODIFY AND ORDER TO 13 v. PETITIONER TO SHOW CAUSE WHY AMENDED PETITION SHOULD NOT 14 M.B. ATCHLEY, BE DISMISSED AS PREMATURE OR FILE NOTICE OF VOLUNTARY 15 Respondent. DISMISSAL1 16 (Doc. No. 18) 17 MARCH 22, 2023 DEADLINE 18 19 Pending before the Court is Respondent’s motion to modify the briefing schedule and to 20 accept its incorporated motion to dismiss as Respondent’s response to Petitioner’s Amended 21 Petition in lieu of an answer to the Amended Petition. (Doc. No. 18). Respondent notifies the 22 Court that it recently learned Petitioner’s sentence is not yet final because Petitioner has not yet 23 been resentenced pursuant to the California Court of Appeal’s order reversing the substantive 24 gang conviction and remanding for resentencing. (Id. at 2-3). Because Petitioner’s remand 25 proceedings remain pending, Respondent moves to dismiss the Amended Petition, without 26 prejudice, as premature under Younger v. Harris, 401 U.S. 37 (1971). The Court grants 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2022). 1 Respondent’s motion to modify the briefing schedule and accepts the motion to dismiss as 2 Respondent’s response to the Amended Petition. The Court further directs Petitioner to show cause 3 why the Court should not grant the motion to dismiss and dismiss the Amended Petition, without 4 prejudice, as premature. Alternatively, Petitioner may file a notice to voluntarily dismiss the 5 Amended Petition, without prejudice, under Federal Rule of Civil Procedure 41 since Respondent has 6 not filed an answer. Once Petitioner’s remand proceedings have concluded, Plaintiff may seek 7 federal habeas review. 8 Petitioner is advised that for purposes of § 2254 habeas review, a conviction is final when 9 “a judgment of conviction has been rendered, the availability of appeal exhausted, and the time 10 for a petition for certiorari elapsed or a petition for certiorari finally denied.” Griffith v. Kentucky, 11 478 U.S. 314, 321 n. 6 (1987). The seminal case of Younger v. Harris, 401 U.S. 37, 44 (1971) 12 applies when a petitioner’s conviction is not yet final. In Younger, the Supreme Court held that a 13 federal court generally cannot interfere with pending state criminal proceedings. This holding, 14 commonly referred to as the Younger abstention doctrine, is based on the principle of federal-state 15 comity and is appropriate when: “(1) there is an ongoing state judicial proceeding; (2) the 16 proceeding implicates important state interests; (3) there is an adequate opportunity in the state 17 proceedings to raise constitutional challenges; and (4) the requested relief seeks to enjoin or has 18 the practical effect of enjoining the ongoing state judicial proceeding.” Page v. King, 932 F.3d 19 898, 901–902 (9th Cir. 2019) (quoting Arevalo v. Hennessy, 882 F.3d 763, 765 (9th Cir. 2018) 20 (alterations and internal quotation marks omitted)). In the habeas context, “[w]here . . . no final 21 judgment has been entered in state court, the state court proceeding is plainly ongoing for 22 purposes of Younger.” Id. at 902. Absent rare circumstances, a district court must dismiss such 23 actions. See Cook v. Harding, 190 F. Supp. 3d 921, 935, 938 (C.D. Cal. 2016), aff’d, 879 F.3d 24 1035 (9th Cir. 2018); Perez v. Ledesma, 401 U.S. 82, 85 (1971) (“Only in cases of proven 25 harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a 26 valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be 27 shown” is federal intervention in an on-going state criminal proceeding appropriate.). 28 //// 1 Accordingly it is ORDERED: 2 1. Respondent’s motion to modify briefing schedule and to accept motion to dismiss 3 | as Respondent’s response to the Amended Petition (Doc. No. 18) is GRANTED. 4 2. Petitioner shall SHOW CAUSE why the Amended Petition should not be 5 | dismissed as premature. Petitioner must deliver his response to this Show Cause Order to 6 | correctional officials for mailing no later than March 22, 2023. 7 3, In the alternative, by the same date, Petitioner may file a notice to voluntarily 8 | dismiss the Amended Petition, without prejudice. 9 4. If Petitioner does not timely respond to this SHOW CAUSE ORDER, the Court 10 | will deem Respondent’s motion to dismiss submitted and ripe for review. 11 | Dated: _ February 22, 2023 Mihaw. Th. foareh Zack 13 HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28