(HC) Parlante v. People of the State of California, No. 2:2012cv00502 - Document 6 (E.D. Cal. 2012)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 12/19/12 RECOMMENDING that petitioners application for a writ of habeas corpus be dismissed. Referred to Judge William B. Shubb; Objections to F&R due within 14 days.(Dillon, M)

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(HC) Parlante v. People of the State of California Doc. 6 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JOHN PARLANTE, 11 12 13 Petitioner, No. 2:12-cv-00502-WBS-DAD P vs. PEOPLE OF THE STATE OF CALIFORNIA, FINDINGS AND RECOMMENDATIONS 14 Respondent. 15 / 16 17 Petitioner, an inmate at the Sacramento County Main Jail, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has paid the filing fee. 18 In his petition, petitioner alleges that he is currently in local custody awaiting trial 19 in the Sacramento County Superior Court on felony charges of assault with a deadly weapon 20 (Cal. Penal Code § 245) and stalking (Cal. Penal Code § 646.9). Petitioner claims that the 21 Sacramento County Superior Court has failed to set a reasonable bail in his case and that its 22 decision on the issue of bail was arbitrary and unjust. (Doc. No. 1 at 4.)1 23 24 The court is required to examine a petition for federal habeas corpus relief before requiring a response to it. See Rules 3 & 4, Rules Governing § 2254 Cases. “If it plainly appears 25 1 26 While the petition is difficult to decipher, it appears that petitioner may also be alleging that his counsel was not present at his bail hearing. (See Doc. No. 1 at 4.) 1 Dockets.Justia.com 1 from the petition . . . that the petitioner is not entitled to relief in the district court, the judge must 2 dismiss the petition . . . .” Rule 4, Rules Governing § 2254 Cases. Rule 4 “‘explicitly allows a 3 district court to dismiss summarily the petition on the merits when no claim for relief is stated.’” 4 O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (quoting Gutierrez v. Griggs, 695 F.2d 5 1195, 1198 (9th Cir. 1983)). 6 Here, the court concludes that petitioner’s federal habeas petition should be 7 summarily dismissed. “Principles of comity and federalism require that the federal court abstain 8 and not entertain a pre-sentence habeas challenge unless the petitioner shows that: (1) he has 9 exhausted available state judicial remedies, and (2) ‘special circumstances’ warrant federal 10 intervention.” Wilkins v. Ahern, No. C 12-543 SI (pr), 2012 WL 1997822 at *2 (N.D. Cal. June 11 4, 2012) (citing Finetti v. Harris, 609 F.2d 594, 597-98 (2nd Cir. 1979) (state prisoner 12 challenging the constitutionality of the denial of bail in state court must exhaust state court 13 remedies by presenting his claim to the highest state court before seeking federal habeas relief) 14 and Younger v. Harris, 401 U.S. 37, 43-54 (1971) (holding that under principles of comity and 15 federalism, a federal court should not interfere with ongoing state criminal proceedings by 16 granting injunctive or declaratory relief absent extraordinary circumstances)). See also Lazarus 17 v. Baca, 389 Fed. Appx. 700 (9th Cir. July 28, 2010)2 (affirming dismissal on Younger 18 abstention grounds of petitioner’s federal habeas petition challenging her $10 million bail set in 19 state court). 20 In this case, petitioner has not shown that he has exhausted his claim by 21 presenting it to the California Supreme Court nor has he established that an exception to Younger 22 abstention applies in this case so as to justify federal court intervention. 23 24 Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas corpus be dismissed. 25 2 26 Pursuant to Ninth Circuit Local Rule 36-3, unpublished dispositions issued on or after January 1, 2007, may be cited in accordance with Fed. R. App. P. 32.1 but are not precedent. 2 1 These findings and recommendations are submitted to the United States District 2 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 3 days after being served with these findings and recommendations, petitioner may file written 4 objections with the court. The document should be captioned “Objections to Magistrate Judge's 5 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 6 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 7 F.2d 1153 (9th Cir. 1991). 8 9 In any objections he elects to file, petitioner shall address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 10 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a 11 certificate of appealability when it enters a final order adverse to the applicant). 12 DATED: December 19, 2012. 13 14 15 DAD:4 parl502.156 16 17 18 19 20 21 22 23 24 25 26 3

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