McDonald v. Lombardo ( 2019 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 MICHAEL MCDONALD, Case No. 2:19-cv-01808-RFB-NJK 6 Petitioner, v. ORDER 7 SHERIFF JOE LOMBARDO, et al., 8 Respondents. 9 10 Petitioner Michael McDonald initiated this case by filing a pro se Petition for Writ of 11 Habeas Corpus, ECF No. 1-1, and paying the five dollar filing fee. This matter is before the Court 12 for initial review pursuant to the Rules Governing Section 2254 Cases.1 For the reasons discussed 13 below, the Court dismisses the petition as improperly commenced. 14 Pursuant to Habeas Rule 4, the assigned judge must examine the habeas petition and order 15 a response unless it “plainly appears” that the petitioner is not entitled to relief. See also Valdez 16 v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019). This rule allows courts to screen and dismiss 17 petitions that are patently frivolous, vague, conclusory, palpably incredible, or false. Hendricks v. 18 Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (collecting cases). The court may also dismiss claims 19 at screening for procedural defects. See Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998). 20 McDonald is charged in an information filed on August 7, 2018, in the Eighth Judicial 21 District Court for Clark County, Nevada (“state court”). State of Nevada v. Michael Lee 22 McDonald, Case No. C-18-333681-1.2 The information alleges five felony charges for unlawful 23 interception of wire communications, and trial is currently set for this month, October 2019. 24 1 All references to a “Habeas Rule” or the “Habeas Rules” in this order identify the Rules Governing Section 25 2254 Cases in the United States District Courts. 26 2 This Court takes judicial notice of the proceedings in McDonald’s criminal case in the state court. The register of actions indicates that trial is set for October 23, 2019. The state court’s docket records may be 27 accessed by the public online at: https://www.clarkcountycourts.us/Anonymous/default.aspx. 1 McDonald’s petition attempts to bring a pretrial challenge to his pending information 2 pursuant to 28 U.S.C. § 2241. ECF No. 1-1 at 3. He alleges four grounds for violation of his rights 3 to due process, speedy trial, compulsory process for obtaining witnesses in his defense, effective 4 assistance of counsel under the Fifth, Sixth, and Fourteenth Amendments, as well as rights to be 5 free of cruel and unusual punishment under the Eighth Amendment. Id. at 7–9. However, 6 McDonald represents that he has not filed any appeal or grievance, or sought any administrative 7 remedy. Id. at 3–6. The request for relief seeks McDonald’s release from Clark County Detention 8 Center (“CCDC”),3 for his charges to be dismissed in Case No. C-18-333681-1 and other cases, 9 and monetary compensation. Id. at 9. 10 Here, the petition is subject to two substantial defects. First, the petition improperly seeks 11 federal judicial intervention in a pending state criminal proceeding. The Younger abstention 12 doctrine prevents federal courts from enjoining pending state court criminal proceedings, even if 13 there is an allegation of a constitutional violation, unless there is an extraordinary circumstance 14 that creates a threat of irreparable injury. Younger v. Harris, 401 U.S. 37, 53–54 (1971). The 15 United States Supreme Court has instructed that “federal-court abstention is required” when there 16 is “a parallel, pending state criminal proceeding.” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 17 72 (2013) (emphasis added); Gilbertson v. Albright, 381 F.3d 965 (9th Cir. 2004) (federal courts 18 generally abstain from granting any relief that would interfere with pending state judicial 19 proceedings). Irreparable injury does not exist if the threat to a petitioner’s federally protected 20 rights may be eliminated through his or her defense of the criminal case. Younger, 401 U.S. at 46. 21 Second, McDonald has not alleged or demonstrated that he fully exhausted his state court 22 remedies. A criminal defendant seeking federal habeas relief to restrain ongoing state criminal 23 proceedings must fully exhaust his state court remedies before presenting his constitutional claims 24 25 3 The Court also takes judicial notice of the online records from CCDC, which confirm whether a criminal defendant is in state custody. A search of current detainees indicates that McDonald is not in custody at 26 CCDC. The “in custody” search may be accessed by the public online at: http://www.clarkcountynv.gov/ccdc/Pages/InCustodySearch.aspx?H=redrock&P=ccdcincustody/inCustod 27 ySearch.aspx. 1 to the federal courts. E.g., Arevalo v. Hennessy, 882 F.3d 763, 764–67 (9th Cir. 2018) (finding 2 that California petitioner properly exhausted his state remedies by filing two motions in the trial 3 court, a habeas petition in the court of appeal, and a habeas petition in the state supreme court, 4 each of which was denied). The exhaustion requirement ensures that state courts, as a matter of 5 federal-state comity, will have the first opportunity to review and correct alleged violations of 6 federal constitutional guarantees. Coleman v. Thompson, 501 U.S. 722, 731 (1991). As a general 7 rule, a federal court will not entertain a petition seeking intervention in an ongoing state criminal 8 proceeding absent extraordinary circumstances, even when a petitioner’s claims were otherwise 9 fully exhausted in the state courts. E.g., Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983); 10 Carden v. Montana, 626 F.2d 82, 83–85 (9th Cir. 1980). 11 No extraordinary circumstances are presented here. McDonald seeks to challenge the 12 charges alleged against him in the information pending before the state court. ECF No. 1-1. To 13 the extent that he alleges limitations on his due process or equal protection rights based on an 14 erroneous indictment, his situation is not different in substance from any criminal defendant facing 15 potential loss of constitutional rights in a pending criminal prosecution—including the most 16 fundamental right to liberty. Defendants in state criminal proceedings routinely allege that state 17 charges violate their constitutional rights, including fundamental rights, which makes this a regular 18 occurrence, not an extraordinary circumstance. In addition, McDonald’ pretrial motion practice 19 or defenses at trial may eliminate any threat to his federally protected rights. For these reasons, 20 abstention is required. 21 Given the two substantial defects presented, this matter will be dismissed without 22 prejudice. Dismissal of this action without prejudice will not materially impact the analysis of any 23 issue in a later filed habeas proceeding, or otherwise result in substantial prejudice. 24 IT IS THEREFORE ORDERED: 25 1. Petitioner Michael McDonald’s Petition for Writ of Habeas Corpus pursuant to 28 26 U.S.C. § 2241, ECF No. 1-1, is DISMISSED without prejudice as improperly 27 commenced. 1 2. Acertificate of appealability is DENIED, as jurists of reason would not find dismissal 2 of the petition to be debatable or wrong. 3 3. The Clerk of Court shall CLOSE this case and ENTER judgment accordingly, 4 dismissing this action without prejudice as improperly commenced. 5 4. McDonald may not file any further documents in this closed case, save and except for 6 a motion seeking reconsideration of this order or relief from the judgment entered. Any 7 further filings or requests for relief must be presented in a new case with a new case 8 number. 9 DATED this 21st day of October, 2019. 10 11 < | 5 RICHARD F. BOULWARE, II 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28