(HC) Henderson v. St. Andre ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DERRICK O’NEAL HENDERSON, No. 2:23-cv-0653 CKD P 12 Petitioner, 13 v. ORDER 14 R. ST. ANDRE, 15 Respondent. 16 17 Petitioner is a California prisoner proceeding pro se with a petition for a writ of habeas 18 corpus under 28 U.S.C. § 2254. Both parties have consented to having all matters in this action 19 before a United States Magistrate Judge. See 28 U.S.C. § 636(c). 20 On September 11, 2019, petitioner was convicted of two counts of assault with a semi- 21 automatic handgun, one count of flight with disregard for the safety of others, one count of felon 22 in possession of a firearm, one count of felon in possession of a handgun and one count of 23 threatening great bodily injury. On November 13, 2019, petitioner was ordered to serve 23 years 24 in prison. ECF No. 16-1. 25 Petitioner appealed which resulted in a remand for resentencing. ECF No. 16-2. A 26 resentencing hearing was held, and review of California Court of Appeal for the Third Appellate 27 District records online reveals that the decision rendered at that hearing is now on appeal. 28 ///// ] Respondent asserts this action must be dismissed pursuant to Younger v. Harris, 401 U.S. 2 | 37, 45-46 (1971). In Younger, the Supreme Court found that federal courts cannot interfere with 3 || pending state criminal proceedings, absent extraordinary circumstances which create a threat of 4 || irreparable injury. 5 As indicated above, state court proceedings are ongoing. Petitioner has not established 6 || irreparable injury will occur if this action is dismissed. Petitioner appears concerned with the 7 || limitations period applicable to a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 8 || 2254. Petitioner is informed that the limitation period begins to run at the earliest when 9 || “judgement [becomes] final by the conclusion of direct review.” 28 U.S.C. § 2244(d)(1)(A). For 10 || more information concerning the applicable statute of limitations, petitioner is referred to 28 11 | US.C. § 2244(d). 12 In accordance with the above, IT IS HEREBY ORDERED that: 13 1. Respondent’s motion to dismiss (ECF No. 15) is granted; 14 2. Petitioner’s petition for a writ of habeas corpus is dismissed pursuant to Younger v. 15 | Harris, 401 U.S. 37 (1971). 16 3. This case is closed. 17 4. The court declines to issue the certificate of appealability referenced in 28 U.S.C. § 18 | 2253. 19 | Dated: December 15, 2023 / ae / a /y Ze 20 CAROLYNK. DELANEY 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 | 4 hend0653 mtdh 26 27 28