(HC) Nunn v. Johnson ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH ARTHUR NUNN, No. 2:22-cv-01396-TLN-EFB (HC) 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 RICK HILL, 15 Respondent. 16 17 Petitioner Joseph Arthur Nunn, currently incarcerated in Folsom State Prison, seeks 18 federal habeas review of his 2016 murder conviction, entered in the Placer County Superior 19 Court. ECF No. 1 at 2. Petitioner filed a motion to stay the court’s consideration of the petition 20 under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) concurrently with the petition. ECF No. 2. 21 Respondent opposes the motion to stay and moves to dismiss the petition. ECF No. 8. For the 22 reasons that follow, it is recommended that the petition be dismissed. 23 I. Background 24 In 2016, petitioner was sentenced to a term of 40-years-to life following a conviction of 25 second-degree murder with a firearm enhancement. ECF No. 1 at 2; ECF No. 10-1 at 1. The 26 conviction was affirmed by the California Court of Appeal on March 2, 2021, but the court 27 ///// 28 ///// 1 remanded the case to the trial court for resentencing due to changes to California Penal Code §§ 2 12022.5 and 12022.53 giving the trial court discretion to strike petitioner’s firearm enhancement 3 in the interests of justice. ECF No. 10-2 at 2. The California Supreme Court denied petitioner’s 4 petition for review on May 12, 2021. ECF No. 10-4. Petitioner’s re-sentencing proceedings 5 remained pending in the state trial court at the time that petitioner filed his federal petition on 6 August 8, 2022. ECF No. 10-7 at 1, 8. 7 In the instant petition, petitioner raises four claims: (1) insufficient evidence to sustain the 8 conviction, (2) erroneous exclusion of expert testimony on subject precipitation; (3) erroneous 9 failure to conduct a hearing on petitioner’s ability to pay various fees; and (4) various instances of 10 ineffective assistance of trial counsel. ECF No. 1 at 60-61. Petitioner asserts that the fourth 11 claim has not been exhausted in the California Supreme Court, and he asks for a stay pending 12 exhaustion. ECF No. 2. 13 II. Analysis 14 Respondent argues that the petition must be dismissed because this court must abstain 15 from the matter while the state proceedings are ongoing. The court agrees. Under the doctrine 16 known as “Younger abstention,” federal courts are required to abstain from hearing cases that 17 would interfere with pending state proceedings that implicate important state interests. Younger 18 v. Harris, 401 U.S. 37 (1971); Potrero Hills Landfill, Inc. v. Cnty. of Solano, 657 F.3d 876, 881 19 (9th Cir. 2011). Under Younger, absent extraordinary circumstances, federal courts must abstain 20 where: (1) state proceedings are ongoing at the time the federal case is filed; (2) the state 21 proceedings implicate important state interests; and (3) the state proceedings provide plaintiff an 22 adequate opportunity to litigate federal claims. H.C. v. Koppel, 203 F.3d 610, 613 (9th Cir. 23 2000). District courts in the Ninth Circuit have routinely determined that these criteria are met 24 where an individual files a federal habeas petition while his state resentencing proceedings are 25 ///// 26 ///// 27 ///// 28 ///// 1 ongoing. E.g., Kasionov v. Gamboa, 2:21-cv-0193 JAM DB P, 2022 U.S. Dist. LEXIS 57797 2 (E.D. Cal. Mar. 28, 2022); Timberlake v. Santoro, No. 1:20-cv-00013-NONE-SKO (HC), 2021 3 U.S. Dist. LEXIS 82473 (E.D. Cal. Apr. 29, 2021); Duke v. Gastelo, No. 2:19-04712 AB (ADS), 4 2020 U.S. Dist. LEXIS 134464 (C.D. Cal. June 24, 2020), rep. and reco. adopted, 2020 U.S. 5 Dist. LEXIS 133544 (C.D. Cal. July 28, 2020); Phillips v. Neuschmid, No. 2:19-cv-03225-RGK 6 (AFM), 2019 U.S. Dist. LEXIS 204615 (C.D. Cal. Oct. 18, 2019) (“courts implicitly find that 7 granting federal habeas corpus relief would have the practical effect of enjoining or interfering 8 with the ongoing state judicial proceeding, even where the state proceeding is limited to 9 sentencing”), rep. and reco. adopted, 2019 U.S. Dist. LEXIS 204569 (C.D. Cal. Nov. 22, 2019). 10 Petitioner argues that his resentencing proceeding is “collateral,” but provides no authority 11 so holding. He also argues that there is “reasonable confusion as to whether his instant claims 12 will be considered timely” under the Antiterrorism and Effective Death Penalty Act’s limitations 13 period. However, that period does not begin to run until the “conclusion of direct review or by 14 the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1). The U.S. Supreme 15 Court has directed that the “finality” under AEDPA that triggers the beginning of the limitations 16 period is the finality of the sentence. Burton v. Stewart, 549 U.S. 147, 156-57 (2007) (quoting 17 Berman v. United States, 302 U.S. 211, 212 (1937): “Final judgment in a criminal case means 18 sentence. The sentence is the judgment.”). Accordingly, AEDPA’s limitations period will not 19 begin to run until the conclusion of direct review of petitioner’s state sentencing petition or the 20 expiration of the time for seeking such review. Thus, the limitations period does not present an 21 extraordinary circumstance that would enable this court to review the petition while state 22 proceedings are pending. 23 ///// 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 1 iI. Recommendation 2 For the foregoing reasons, it is RECOMMENDED that petitioner’s August 8, 2022 3 || motion for stay (ECF No. 2) be denied, that respondent’s September 9, 2022 motion to dismiss 4 | (ECF No. 8) be granted, and that the petition be dismissed without prejudice to petitioner’s ability 5 || to file it again once his state proceedings are final. 6 These findings and recommendations are submitted to the United States District Judge 7 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 8 | after being served with these findings and recommendations, any party may file written 9 || objections with the court and serve a copy on all parties. Such a document should be captioned 10 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 11 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 12 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 13 14 | Dated: December 9, 2022. □□ PDEA EDMUND F. BRENNAN 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28