Desmond M. McGill v. John Marshall, No. 2:2009cv05572 - Document 3 (C.D. Cal. 2009)

Court Description: OPINION AND ORDER On A Petition for Habeas Corpus by Judge Valerie Baker Fairbank; IT IS ORDERED that Judgment be entered DISMISSING without prejudice the petition for writ of habeas corpus and action. IT IS FURTHER ORDERED that the Clerk of Court shall notify petitioner of the dismissal without prejudice. See order for further details. (jy)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 DESMOND McGILL, Petitioner, 11 vs. 12 JOHN MARSHALL (WARDEN), 13 Respondent. 14 ) Case No. CV 09-5572-VBF(RC) ) ) ) ) OPINION AND ORDER ON A ) PETITION FOR HABEAS CORPUS ) ) ) 15 16 On July 30, 2009, petitioner Desmond McGill, a person in state 17 custody proceeding pro se, filed a petition for a writ of habeas 18 corpus under 28 U.S.C. § 2254, challenging his 2007 conviction and 19 sentence for carjacking and robbery in Los Angeles Superior Court case 20 no. SA065045,1 following a plea of nolo contendere. 21 The petition shows on its face that petitioner has a petition for writ 22 of certiorari pending in the United States Supreme Court. 23 3. Petition at 2. Petition at 24 25 26 27 28 1 The Court, pursuant to Fed. R. Evid. 201, takes judicial notice of the documents filed in two previous habeas corpus cases brought by petitioner: (1) McGill v. State of California, case no. CV 09-1073-VBF(RC) ( McGill I ); and (2) McGill v. State of California, case no. CV 09-1361-VBF(RC) ( McGill II ), which establish the Superior Court case number. 1 DISCUSSION 2 The seminal case of Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 3 27 L. Ed. 2d 669 (1971) establishes that under principles of comity and 4 federalism, a federal court should not interfere with ongoing state 5 criminal proceedings by granting injunctions or declaratory relief 6 absent extraordinary circumstances. 7 Middlesex County Ethics Comm'n v. Garden State Bar Ass'n, 457 U.S. 423, 8 431, 102 S. Ct. 2515, 2521, 73 L. Ed. 2d 116 (1982); Samuels v. 9 Mackell, 401 U.S. 66, 69, 91 S. Ct. 764, 766, 27 L. Ed. 2d 688 (1971). Id. at 44, 91 S. Ct. at 750; 10 This principle of Younger abstention is also applicable to claims 11 raised in federal habeas corpus proceedings. 12 160 F.3d 582, 587 (9th Cir. 1998); Carden v. State of Montana, 13 626 F.2d 82, 83-85 (9th Cir.), cert. denied, 449 U.S. 1014 (1980). 14 Abstention in favor of state judicial proceedings is required if the 15 proceedings are ongoing, implicate important state interests and afford 16 an adequate opportunity to raise federal questions, and if the federal 17 relief sought would interfere in some manner with the state court 18 litigation. 19 102 S. Ct. at 2521; Green v. City of Tucson, 255 F.3d 1086, 1094 (9th 20 Cir. 2001)(en banc). Edelbacher v. Calderon, Middlesex County Ethics Comm'n, 457 U.S. at 432, 21 22 Here, all the prerequisites to the application of abstention 23 under Younger have been met. First, petitioner is currently the 24 subject of a criminal proceeding in state court, which is not yet 25 final.2 H.C. v. Koppel, 203 F.3d 610, 613 (9th Cir. 2000); Dubinka v. 26 27 28 2 A state court criminal judgment becomes final when the Supreme Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when 2 1 Judges of the Superior Court, 23 F.3d 218, 223 (9th Cir. 1994). 2 Second, the state undeniably has an important interest in protecting 3 the public by the filing and prosecuting of criminal proceedings. 4 Seling v. Young, 531 U.S. 250, 262, 121 S. Ct. 727, 734, 148 L. Ed. 2d 5 734 (2001). 6 opportunity for petitioner, who is the defendant, to raise constitu- 7 tional claims, such as he raises herein. 8 petitioner seeks, a writ of habeas corpus, would clearly interfere 9 with the ongoing state criminal proceeding, see Preiser v. Rodriguez, Third, the state court criminal proceedings afford an Finally, the remedy the 10 411 U.S. 475, 484, 93 S. Ct. 1827, 1833, 36 L. Ed. 2d 439 (1973) 11 ( [T]he essence of habeas corpus is an attack by a person in custody 12 upon the legality of that custody, and . . . the traditional function 13 of the writ is to secure release from custody. ), and petitioner has 14 not identified any extraordinary circumstances warranting an 15 exception to the Younger doctrine. 16 17 Rule 4 of the Rules Governing Section 2254 Cases in the United 18 States Courts provides that [i]f it plainly appears from the petition 19 and any attached exhibits that the petitioner is not entitled to 20 relief in the district court, the judge must dismiss the petition and 21 direct the clerk to notify petitioner. The instant petition shows 22 23 24 25 26 27 28 the time for filing a certiorari petition expires. Clay v. United States, 537 U.S. 522, 527, 123 S. Ct. 1072, 1076, 155 L. Ed. 2d 88 (2003); see also Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001) ( [U]nder [§ 2244(d)], a judgment becomes final in one of two ways either by the conclusion of direct review by the highest court, including the United States Supreme Court, to review the judgment, or by the expiration of the time to seek such review, again from the highest court from which such direct review could be sought. ), cert. denied, 534 U.S. 1143 (2002). 3 1 that petitioner s state court criminal judgment is not yet final; 2 thus, the petition must be dismissed without prejudice. 3 4 ORDER 5 6 IT IS ORDERED that Judgment be entered DISMISSING without prejudice the petition for writ of habeas corpus and action. 7 8 9 IT IS FURTHER ORDERED that the Clerk of Court shall notify petitioner of the dismissal without prejudice. 10 11 DATE: August 4, 2009 12 13 VALERIE BAKER FAIRBANK UNITED STATES DISTRICT JUDGE PRESENTED BY: 14 DATE: July 30, 2009 15 16 17 18 /S/ ROSALYN M. CHAPMAN ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE R&Rs-MDOs\09-5572.mdo 7/30/09 19 20 21 22 23 24 25 26 27 28 4

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