(HC) Dearman v. Kaplan ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RYAN ALAN DEARMAN, No. 2:21-cv-2412 TLN CKD P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 JULIE KAPLAN,1 15 Respondent. 16 17 Petitioner is a California parolee proceeding pro se with an application for a writ of habeas 18 corpus under 28 U.S.C. § 2254, challenging Colusa County convictions for dissuading a witness 19 and domestic battery. He claims the trial court violated the Fifth and Sixth Amendments by not 20 permitting private counsel to represent petitioner at trial. 21 Petitioner was found guilty by a jury. On January 21, 2020, the trial court suspended 22 imposition of sentence and placed plaintiff on probation for three years. ECF 15-1. Petitioner 23 appealed, raising the same issues he does here. ECF No. 15-2. Petitioner sought review as to the 24 Court of Appeal’s denial of his claims in the California Supreme Court and the petition for review 25 was denied. ECF 15-3 & 4. 26 27 1 Julie Kaplan, a “Parole Administrator” in San Jose, is hereby substituted as the respondent in this action pursuant to Rule 2 of the Rules Governing Section 2254 Cases as she is the state 28 officer having custody of petitioner. 1 Before completion of petitioner’s appeal, his probation was revoked and petitioner was 2 sentenced to three years imprisonment. ECF No. 15-5. Petitioner appealed the revocation of his 3 probation and sentence and that appeal is still pending. ECF No. 15-6. 4 Respondent has filed a motion to dismiss. Respondent asserts that “[i]t is premature for 5 this Court to review Petitioner’s petition because the appeal of the judgment he is challenging is 6 currently pending.” Respondent suggests that the court abstain from addressing petitioner’s 7 claims pursuant to Younger v. Harris, 401 U.S. 37, 45-46 (1971). 8 However, in this action petitioner is not challenging the revocation of his probation or the 9 imposition of a term of three years’ imprisonment. Rather, he challenges the convictions 10 themselves, which appear to be final; the challenges were already presented to and rejected by 11 California’s courts. Thus, there does not appear to be a reason to abstain from addressing 12 petitioner’s claims. 13 In response to respondent’s motion to dismiss, petitioner filed a motion asking that the 14 court stay this matter so he can exhaust state court remedies with respect to unidentified claims. 15 As petitioner does not identify the claims, the court cannot ascertain if a stay is warranted. 16 Accordingly, IT IS HEREBY RECOMMENDED that: 17 1. Respondent’s motion to dismiss (ECF No. 13) be denied; 18 2. Petitioner’s motion for a stay (ECF No. 18) be denied; and 19 3. Respondent be directed to file an answer concerning the claims appearing in 20 petitioner’s application for a writ of habeas corpus. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 23 after being served with these findings and recommendations, any party may file written 24 objections with the court and serve a copy on all parties. Such a document should be captioned 25 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 26 objections shall be served and filed within fourteen days after service of the objections. The 27 ///// 28 ///// 1 | parties are advised that failure to file objections within the specified time may waive the right to 2 || appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 | Dated: May 2, 2022 aie A / ap 4 4 CAROLYNK. DELANEY 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 fi 9 dear2412.fis 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28