(HC) Fawcett v. Prudhel ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARK FAWCETT, Case No. 1:24-cv-00382-SAB-HC 12 Petitioner, FINDINGS AND RECOMMENDATION TO GRANT RESPONDENT’S MOTION TO 13 v. DISMISS AND DISMISS PETITION FOR WRIT OF HABEAS CORPUS WITHOUT 14 JOSHUA PRUDHEL,1 PREJUDICE 15 Respondent. (ECF No. 9) 16 ORDER DIRECTING CLERK OF COURT TO SUBSTITUTE RESPONDENT, 17 RANDOMLY ASSIGN DISTRICT JUDGE, AND UPDATE PETITIONER’S ADDRESS 18 19 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 20 pursuant to 28 U.S.C. § 2254. 21 I. 22 BACKGROUND 23 Petitioner was convicted in the Merced County Superior Court of criminal threats, 24 threatening state officials, and disobeying a court order. Petitioner was sentenced to an 25 imprisonment term of four years. (LD2 1, 2.) On March 4, 2022, the California Court of Appeal, 26 1 Joshua Prudhel is the Warden of the Sierra Conservation Center, where Petitioner is currently housed. (ECF No. 9 27 at 1 n.1.) Accordingly, Joshua Prudhel is substituted as Respondent in this matter. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996). 1 Fifth Appellate District struck the prior prison sentencing enhancement pursuant to California 2 Senate Bill 136 and remanded the matter to the trial court for resentencing pursuant to Senate 3 Bill 567. The judgment was affirmed in all other respects. (LD 2.) On May 18, 2022, the 4 California Supreme Court denied the petition for review. (LDs 3, 4.) 5 On June 6, 2022, Petitioner was resentenced to an imprisonment term of three years. (LD 6 5.) On July 6, 2023, the California Court of Appeal remanded for resentencing because the trial 7 judge who imposed the sentence was recused and not authorized to preside over the resentencing 8 proceedings. (LD 6.) On January 29, 2024, Petitioner was resentenced to eight months. (LD 7.) 9 Petitioner has appealed, and appellate proceedings are still pending. (LD 8.) 10 On April 2, 2024, Petitioner filed a federal petition for writ of habeas corpus. (ECF No. 11 1.) On August 2, 2024, Respondent filed a motion to dismiss the petition pursuant to Younger v. 12 Harris, 401 U.S. 37 (1971), because Petitioner’s appellate proceedings are still pending. (ECF 13 No. 9.) To date, Petitioner has not filed an opposition or statement of non-opposition to the 14 motion to dismiss, and the time for doing so has passed. 15 II. 16 DISCUSSION 17 “Younger abstention is a jurisprudential doctrine rooted in overlapping principles of 18 equity, comity, and federalism.” San Jose Silicon Valley Chamber of Commerce Political Action 19 Comm. v. City of San Jose, 546 F.3d 1087, 1091 (9th Cir. 2008). In Younger, the Supreme Court 20 held that when there is a pending state criminal proceeding, federal courts must refrain from 21 enjoining the state prosecution. Younger, 401 U.S. at 41; Sprint Commc’ns, Inc. v. Jacobs, 571 22 U.S. 69, 72 (2013). See also Kowalski v. Tesmer, 543 U.S. 125, 133 (2004) (“The doctrine of 23 Younger v. Harris . . . reinforces our federal scheme by preventing a state criminal defendant 24 from asserting ancillary challenges to ongoing state criminal procedures in federal court.”). 25 “However, even if Younger abstention is appropriate, federal courts do not invoke it if there is a 26 ‘showing of bad faith, harassment, or some other extraordinary circumstance that would make 27 abstention inappropriate.’” Arevalo v. Hennessy, 882 F.3d 763, 765–66 (9th Cir. 2018) (quoting 1 Here, Petitioner was resentenced on January 29, 2024, and his appeal of the new 2 judgment is still pending. The Ninth Circuit has held that “[w]hen, as in the present case, an 3 appeal of a state criminal conviction is pending, a would-be habeas corpus petitioner must await 4 the outcome of his appeal before his state remedies are exhausted, even where the issue to be 5 challenged in the writ of habeas corpus has been finally settled in the state courts.” Sherwood v. 6 Tomkins, 716 F.2d 632, 634 (9th Cir. 1983). The Sherwood court explained that “even if the 7 federal constitutional question raised by the habeas corpus petitioner cannot be resolved in a 8 pending state appeal, that appeal may result in the reversal of the petitioner’s conviction on some 9 other ground, thereby mooting the federal question.” Id. (citations omitted). See also Henderson 10 v. Johnson, 710 F.3d 872, 874 (9th Cir. 2013) (“Sherwood stands for the proposition that a 11 district court may not adjudicate a federal habeas petition while a petitioner’s direct state appeal 12 is pending.”). As Petitioner has failed to demonstrate any “unusual circumstances, [the Court] 13 decline[s] to depart from the general rule that a petitioner must await the outcome of the state 14 proceedings before commencing his federal habeas corpus action.” Edelbacher v. Calderon, 160 15 F.3d 582, 583 (9th Cir. 1998). As Petitioner has an ongoing criminal appeal in state court, the 16 instant federal habeas petition is premature and should be dismissed. 17 III. 18 RECOMMENDATION & ORDER 19 Based on the foregoing, the Court HEREBY RECOMMENDS that Respondent’s motion 20 to dismiss (ECF No. 9) be GRANTED and the petition be DISMISSED without prejudice. 21 Further, the Clerk of Court is DIRECTED to: 22 1. Substitute Joshua Prudhel as Respondent in this matter; 23 2. Randomly assign this action to a District Judge; and 24 3. Update Petitioner’s address to reflect that he is currently housed at the Sierra 25 Conservation Center. 26 This Findings and Recommendation is submitted to the assigned United States District 27 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 1 | THIRTY (30) days after service of the Findings and Recommendation, any party may file 2 | written objections with the Court, limited to fifteen (15) pages in length, including any 3 | exhibits. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 4 | Recommendation.” Replies to the objections shall be served and filed within fourteen (14) days 5 | after service of the objections. The assigned District Judge will then review the Magistrate 6 | Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file 7 | objections within the specified time may waive the right to appeal the District Court’s order. 8 | Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 9 | 1391, 1394 (9th Cir. 1991)). 10 i IT IS SO ORDERED. FA. ee 12 | Dated: _ October 21, 2024 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28