Dunsmore v. Gore ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DARRYL DUNSMORE, Case No.: 20cv2120 CAB (NLS) 12 Petitioner, ORDER GRANTING MOTION TO 13 v. PROCEED IN FORMA PAUPERIS [ECF No. 2] AND DISMISSING 14 GORE et al., PETITION WITHOUT PREJUDICE 15 Respondents. 16 17 Petitioner is a California prisoner serving a sentence of 22 years in state prison as a 18 result of a 2010 conviction and sentence in San Diego Superior Court case number SCS 19 215653, who is currently detained at the San Diego County Jail and is proceeding pro se 20 with a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.1 (ECF No. 1.) 21 On October 28, 2020, Petitioner filed a motion for leave to proceed in forma pauperis along 22 23 24 1 The Court takes judicial notice of the abstract of judgment against Petitioner, which was 25 filed as a lodgment in a separate habeas corpus proceeding in this district, with respect to the length of Petitioner’s sentence and year of conviction and sentence in case number SCS 26 216553. (ECF No. 28-2 at 42-45, CT 126-29, in S.D. Cal. Civil Case No. 13cv1193-GPC- 27 PCL); see United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“[A] court may take judicial notice of its own records in other cases, as well as the records of an inferior court 28 1 with a copy of his trust account statement. (ECF No. 2.) For the reasons discussed below, 2 the Court GRANTS Petitioner’s motion for leave to proceed in forma pauperis [ECF No. 3 2] and DISMISSES the Petition without prejudice. 4 MOTION TO PROCEED IN FORMA PAUPERIS 5 Upon review of Petitioner’s motion and accompanying trust account statement, 6 Petitioner has $1.94 on account at the San Diego County Jail (see ECF No. 2 at 2, 4) and 7 cannot afford the $5.00 filing fee. As such, the Court GRANTS Petitioner’s motion to 8 proceed in forma pauperis and allows him to prosecute the above-referenced action without 9 being required to prepay fees or costs and without being required to post security. The 10 Clerk of the Court will file the Petition for Writ of Habeas Corpus without prepayment of 11 the filing fee. 12 DISCUSSION 13 Petitioner indicates he is challenging his 2010 conviction in Case No. SCS 215653 14 and indicates the result on appeal was “pending, reversal, remand.” (ECF No. 1 at 1-2.) 15 Petitioner raises four claims for relief, alleging (1) the courts have violated his due process 16 rights by impeding his attempted writ review, (2) he has been denied meaningful access to 17 the courts by denying him the tools necessary to prosecute his claims, (3) discrimination 18 under the Americans with Disabilities Act by the courts’ refusal to provide access to an 19 ADA Coordinator and by being denied programming, and (4) equal protection violations 20 and denial of equal access to the law based on his disabilities. (Id. at 6-9.) Petitioner lists 21 numerous state trial and appellate court case numbers, including case numbers MH102411, 22 D057645, D076678, D074656 and D077762, the last of which Petitioner indicates is now 23 pending.2 (Id. at 2, 10.) Petitioner also indicates he has filed other petitions, applications 24 25 2 The Court was unable to locate case number D077762 in a search of the California 26 Supreme Court’s electronic docket. It is unclear whether Petitioner may have instead 27 intended to refer to case number D077926, a petition for writ of mandate filed on September 14, 2020 and denied by the California Court of Appeal on September 15, 2020, 28 1 or motions with respect to this judgment in both the state appellate and state supreme courts 2 but does not provide any case numbers or other details concerning those proceedings. (Id. 3 at 3-4.) 4 With respect to the first claim presented, Petitioner fails to identify the case number 5 associated with the writ review he alleges is being impeded. Upon review of the state court 6 cases cited by Petitioner, Petitioner first lists case number MH102411, which was appealed 7 in case number D053201 and was closed in 2009. (See Case No. MH102411 at 8 https://appellatecases.courtinfo.ca.gov/search.cfm?dist=41, last visited November 12, 9 2020.) Given that this case predates the conviction challenged in the instant petition, 10 Petitioner’s 2010 conviction and sentence in case number SCS 215653, it is unclear 11 whether or how this case relates to Petitioner’s current habeas action and Petitioner does 12 not offer clarification on this matter. Case number D076678, meanwhile, concerns the 13 denial of Petitioner’s motion to withdraw a guilty plea in case number SCS 179057, a 2004 14 conviction that was used as a strike in Petitioner’s 2010 sentencing in case number SCS 15 215653. (See https://www.courts.ca.gov/opinions/nonpub/D076678M.PDF.) Upon 16 examination of this district’s own docket, the Court takes judicial notice that Petitioner 17 currently has a pending case challenging this conviction, S.D. Cal. Civil Case No. 18 20cv1773-CAB-AGS. See Wilson, 631 F.2d at 119 (“[A] court may take judicial notice 19 of its own records in other cases, as well as the records of an inferior court in other cases.”) 20 To the extent Petitioner seeks to amend his pending petition in that case, he must submit 21 such filings in that pending proceeding and not the instant action. 22 Review of case numbers D074656 and D057645 reflect Petitioner’s 2010 sentence 23 in case number SCS 215653 was reversed for resentencing in an order dated October 8, 24 2019 in case number D074656, but it is unclear whether Petitioner has since been 25 26 27 30, 2020, two days after Petitioner filed the instant Petition. (See Case No. D077926 at https://appellatecases.courtinfo.ca.gov/search.cfm?dist=0, last visited November 12, 28 1 resentenced. (See https://www.courts.ca.gov/opinions/nonpub/D074656.PDF, last visited 2 November 12, 2020.) To the extent Petitioner’s claims relate to his ongoing state criminal 3 resentencing proceedings, it appears those claims would be subject to dismissal pursuant 4 to the abstention doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971). Under 5 Younger, federal courts may not interfere with ongoing state criminal proceedings absent 6 extraordinary circumstances. Id. at 45-46; see Middlesex County Ethics Comm. v. Garden 7 State Bar Ass’n, 457 U.S. 423, 431 (1982) (Younger “espouse[d] a strong federal policy 8 against federal-court interference with pending state judicial proceedings.”) The Ninth 9 Circuit has explained that: “Younger abstention is appropriate when: (1) there is ‘an 10 ongoing state judicial proceeding’; (2) the proceeding ‘implicate(s) important state 11 interests’; (3) there is ‘an adequate opportunity in the state proceedings to raise 12 constitutional challenges’; and (4) the requested relief ‘seek(s) to enjoin’ or has ‘the 13 practical effect of enjoining’ the ongoing state judicial proceeding.” Arevalo v. Hennessy, 14 882 F.3d 763, 765 (9th Cir. 2018), quoting ReadyLink Healthcare, Inc. v. State Comp. Ins. 15 Fund, 754 F.3d 754, 758 (9th Cir. 2014). Each of those criteria appear satisfied here. 16 Petitioner appears to acknowledge that his case remains ongoing in state court, as he 17 indicates the result on appeal was “pending, reversal, remand.” (ECF No. 1 at 1-2.) It is 18 evident that resentencing proceedings implicate important state interests. It also appears 19 Petitioner is able to petition the state courts for the relief he seeks. Petitioner notes he has 20 an appeal currently pending in state court (see id. at 2, 10), and while Petitioner has 21 identified that case as case number D077762, which the Court has been unable to locate on 22 the California Supreme Court’s electronic docket, the Court cannot simply discount 23 24 25 3 Similarly, case number D057645 also pertains to Petitioner’s 2010 conviction in case number SCS215653. There, the state appellate court affirmed the judgment against 26 Petitioner but reversed the portion of the sentence relating to fees, fines, surcharges and 27 penalty assessments in an order dated December 22, 2011. (See Case No. D057645 at https://appellatecases.courtinfo.ca.gov/search.cfm?dist=41, last visited November 12, 28 1 Petitioner’s assertion that he is currently availing himself of the opportunity to petition the 2 state courts for relief.4 In any event, given that Petitioner’s resentencing appears to be 3 ongoing, the Court must refrain from any federal action that would serve to enjoin those 4 state criminal proceedings. Thus, to the extent the Petition seeks to challenge ongoing 5 resentencing proceedings, abstention is required.5 See Drury v. Cox, 457 F.2d 764, 764- 6 65 (9th Cir. 1972) (“[O]nly in the most unusual circumstances is a defendant entitled to 7 have federal interposition by way of injunction or habeas corpus until after the jury comes 8 in, judgment has been appealed from and the case concluded in the state courts.”); see also 9 Juidice v. Vail, 430 U.S. 327, 337 (1977) (holding that if Younger abstention applies, a 10 court may not retain jurisdiction but should dismiss the action). 11 Finally, several of Petitioner’s contentions, particularly those related to Petitioner’s 12 alleged denial of meaningful access, equal protection and ADA violations, appear to relate 13 not to challenges to his conviction or sentence, but to the conditions of his confinement. 14 To the extent Petitioner seeks to challenge the conditions of his confinement, such a 15 challenge must be brought, if at all, in a civil rights complaint filed pursuant to 42 U.S.C. 16 § 1983. See Preiser v. Rodriguez, 411 U.S. 475, 499 (1973) (“[A] § 1983 action is a proper 17 remedy for a state prisoner who is making a constitutional challenge to the conditions of 18 19 4 The Court notes that it also appears Petitioner recently filed another habeas petition in the 20 California Court of Appeal, which the state appellate court denied on October 9, 2020; on 21 October 23, 2020, Petitioner filed a petition for review in the California Supreme Court, which is currently pending. (See Case Nos. D078038 and S265169 at 22 https://appellatecases.courtinfo.ca.gov/search.cfm?dist=41, last visited November 12, 23 2020.) 24 5 In the event Petitioner’s state criminal proceedings have since concluded and he has been 25 resentenced, the Court apprises Petitioner that pursuant to 28 U.S.C. § 2254, he must still exhaust state judicial remedies before bringing any claims related to the state court’s 26 decision in federal court. In order to exhaust, a California state prisoner must first present 27 the California Supreme Court with a fair opportunity to rule on the merits of every claim raised in his or her federal habeas petition. See 28 U.S.C. § 2254(b), (c); Granberry v. 28 1 ||his prison life, but not to the fact or length of his custody.’’); see also Nettles v. Grounds, 2 || 830 F.3d 922, 931 (th Cir. 2016) (en banc) (“[W]e hold that if a state prisoner’s claim 3 || does not lie at ‘the core of habeas corpus,’ it may not be brought in habeas corpus but must 4 ||be brought, ‘if at all,’ under § 1983.”), quoting Preiser, 411 U.S. at 487, and Skinner v. 5 || Switzer, 562 U.S. 521, 535 n.13 (2011). If Petitioner wishes to pursue claims concerning 6 ||the conditions of his confinement, he must file a new civil rights action pursuant to 42 7 U.S.C. § 1983 which will be given a new civil case number. 8 CONCLUSION AND ORDER 9 The Court GRANTS Petitioner’s motion for leave to proceed in forma pauperis 10 ||[ECF No. 2]. For the reasons discussed above, the Petition is DISMISSED without 11 prejudice. To the extent Petitioner wishes to challenge the conditions of his confinement, 12 must file a new civil rights complaint pursuant to 42 U.S.C. § 1983, which will be given 13 ||a new case number. 14 || IT ISSO ORDERED. 15 Dated: November 13, 2020 € ZL 16 Hon. Cathy Ann Bencivengo 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28