Smith v. Sutton ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARQUELL SMITH, Case No.: 21-CV-661 JLS (BGS) 12 Petitioner, ORDER (1) DISMISSING CASE 13 WITHOUT PREJUDICE AND (2) DENYING MOTION TO STAY 14 v. AND REQUEST TO APPOINT 15 COUNSEL AS MOOT 16 J. SUTTON, Warden, et al., (ECF Nos. 1, 2) 17 Respondents. 18 19 Petitioner, a state prisoner proceeding pro se, has filed a Petition for a Writ of Habeas 20 Corpus pursuant to 28 U.S.C. § 2254 challenging a November 4, 2020 San Diego Superior 21 Court judgment in case number SCD137023. See ECF No. 1. Petitioner has also filed a 22 motion to stay and a request for appointment of counsel. See ECF No. 2. 23 FAILURE TO SATISFY FILING FEE REQUIREMENT 24 Petitioner has not paid the $5.00 filing fee and has not filed an application to proceed 25 in forma pauperis. Because this Court cannot proceed until Petitioner has either paid the 26 filing fee or qualified to proceed in forma pauperis, the Petition is subject to dismissal 27 without prejudice. See Rule 3(a), 28 U.S.C. foll. § 2254. 28 / / / 1 ABSTENTION 2 It is also evident that the Petition must be dismissed because the Court is barred from 3 considering Petitioner’s claims pursuant to Younger v. Harris, 401 U.S. 37 (1971). Under 4 Younger, federal courts may not interfere with ongoing state criminal proceedings absent 5 extraordinary circumstances. Id. at 45–46; see Middlesex Cty. Ethics Comm. v. Garden 6 State Bar Ass’n, 457 U.S. 423, 431 (1982) (noting Younger “espouse[d] a strong federal 7 policy against federal-court interference with pending state judicial proceedings”). These 8 concerns are particularly important in the habeas context, where a state prisoner’s 9 conviction may be reversed on appeal, thus rendering the federal matter moot. Sherwood 10 v. Thompkins, 716 F.2d 632, 634 (9th Cir. 1983). Thus, absent extraordinary 11 circumstances, abstention under Younger is required when: (1) state judicial proceedings 12 are ongoing; (2) the state proceedings involve important state interests; and (3) the state 13 proceedings afford an adequate opportunity to raise the federal issue. Columbia Basin 14 Apartment Ass’n v. City of Pasco, 268 F.3d 791, 799 (9th Cir. 2001). 15 All three criteria are satisfied here, and Petitioner has not established extraordinary 16 circumstances. First, Petitioner indicates he has yet to file a direct appeal, much less 17 receive a decision on direct appeal from the California Court of Appeal. See ECF No. 1 at 18 2 (“Appeal on new judgment is underway now, not even filed yet.”); see also id. at 6. 19 Second, it is not only clear that Petitioner’s criminal case remains ongoing in state court, 20 but also that such proceedings involve important state interests. Finally, Petitioner fails to 21 show he has not been, and will not be, afforded an adequate opportunity to raise his federal 22 issues in state court. Indeed, Petitioner’s claims of insufficient evidence, prosecutorial 23 failure to disclose favorable evidence concerning the credibility of a witness, and 24 prosecutorial interference in presentation of witnesses are the types of claims state courts 25 provide an opportunity to raise on direct appeal. Accordingly, abstention is required here.1 26 27 1 Previously, in another case in this District, the Court conditionally granted Petitioner’s prior federal 28 1 || See Drury v. Cox, 457 F.2d 764, 764-65 (9th Cir. 1972) (“[O]nly in the most unusual 2 || circumstances is a defendant entitled to have federal interposition by way of injunction or 3 || habeas corpus until after the jury comes in, judgment has been appealed from and the case 4 ||concluded in the state courts.”’); see also Juidice v. Vail, 430 U.S. 327, 337 (1977) (holding 5 || that if Younger abstention applies, a court may not retain jurisdiction but should dismiss 6 || the action). 7 CONCLUSION 8 In light of the foregoing, the Court DISMISSES WITHOUT PREJUDICE the 9 || Petition (ECF No. 1) for failure to satisfy the filing fee requirement and because the Court 10 abstain from interference in the ongoing state court proceedings. Accordingly, the 11 |}Court DENIES AS MOOT Petitioner’s motion for stay and request for appointment of 12 || counsel (ECF No. 2). 13 IT IS SO ORDERED. 14 || Dated: April 22, 2021 : tt 15 on. Janis L. Sammartino 16 United States District Judge 17 18 19 20 21 22 23 24 within a reasonable amount of time. See ECF No. 43 at 166 in Case No. 06-CV-2546 MMA (BLM) (S.D. Cal.). Ina November 30, 2018 Order, the Ninth Circuit denied Petitioner’s application for authorization 25 file a second or successive 28 U.S.C. § 2254 habeas corpus petition in the district court but acknowledged the district court’s order conditionally granting habeas relief and indicated its own order 26 || was “without prejudice as to the applicant filing a section 2254 habeas petition in the district court after the state court enters a new judgment upon resentencing or after retrial.” ECF No. 10 in Case No. 17- 27 || 72075 (9th Cir.). Petitioner indicates his new judgment was issued on November 4, 2020. See ECF No. 28 1 at 1. For the reasons provided herein, regardless of whether Petitioner intended with the instant filing to attempt to reopen his prior case or initiate a new case, the Court must still abstain. □□