Levar Brown v. Leroy Baca, No. 2:2013cv00745 - Document 6 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Judge Virginia A. Phillips, DISMISSING PETITION WITHOUT PREJUDICE AND DENYING CERTIFICATE OF APPEALABILITY. (See document for details.) For the reasons stated above, this petition is DISMISSED without prejudice. A certificate of appealability will not issue. Reasonable jurists would not find the dismissal of the petition as successive debatable or wrong. (rla)
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FILED· SOUTHERN DIVISION CLERK, U.S. DISTRICT COURT 1 fE8- 8 2013 2 CfNTRAl DIS 3 8Y 4 UNITED STATES DISTRICT COURT 5 CENTRAL DISTRICT OF CALIFORNIA 6 WESTERN DIVISION 7 8 9 ) ) ) ) ) ) ) ) ) v. 11 LEROY BACA, Respondent. 13 Case No. CV 13-0745-VAP (MLG) ) Petitioner, 10 12 ) LEVAR BROWN, MEMORANDUM OPINION AND ORDER DISMISSING PETITION WITHOUT PREJUDICE AND DENYING CERTIFICATE OF APPEALABILITY 14 15 16 17 I. Factual and Procedural Background Levar Brown filed this petition for writ of habeas corpus, 18 pursuant to 28 U.S.C. 19 reveals that Petitioner is awaiting trial in the Los Angeles County 20 Superior Court on one count of murder. 21 difficult to understand, it sets out a litany of complaints regarding 22 the pretrial proceedings in the pending criminal case. 23 claims that he has been denied the right to a speedy trial, that he 24 is subject to excessive bail, 25 falsely accuse him of murder, 26 effective assistance of counsel. 27 28 This petition § 2241, mirrors on February 4, 2013. The petition Although the petition is Petitioner that the police have conspired to two and that prior he has been denied the petitions filed by this petitioner, both of which were dismissed without prejudice based on 1 the abstention doctrine of Younger v. 401 U.S. 2 (1971) . 1 Because the current petition challenges a pending state 3 criminal case and because no judgment has been entered in that case, 4 this Court will not intervene in those state court proceedings, and 5 the petition will be dismissed without prejudice. Harris, 37, 43-54 6 7 II. 8 Screening Requirement Pursuant to Rule 4 of the Rules Governing Section 2254 Cases in 9 the United States District Court, a district court may summarily 10 dismiss a habeas corpus petition, before the respondent files an 11 answer, 12 that the petitioner is not entitled to relief. 13 state: 14 may avoid burdening the respondent with the necessity of filing an 15 answer on the 16 Thompson, 17 question that the is not cognizable under either 28 U.S.C. 18 28 19 warranted. 11 11 [if it plainly appears from the face of the petition ... 11 The notes to Rule 4 a dismissal may be called for on procedural grounds, which u.s.c. substantive merits of 147 F.3d 1124, 1127-28 the petition. (9th Cir. 1998). 11 See Boyd v. It is beyond § 2241 or 2254. Accordingly, summary dismissal of the petitions is § 2 20 21 22 23 24 25 26 27 28 1 See Brown v. Superior Court, Case No. CV 12-3593-VAP (MLG); Brown v. Baca, Case No. CV 12-8475-VAP (MLG). 2 Petitioner has consented to the exercise of consent jurisdiction by the United States Magistrate Judge. "Upon the consent of the parties," a magistrate judge "may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case." 28 U.S.C. § 636(c) (1). Here, Petitioner is the only "party" to the instant proceeding and has consented to the jurisdiction of the undersigned United States Magistrate Judge. Respondent has not yet been served with the Petition and therefore is not a party to this proceeding. See, e.g., Travelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F. 3d 1132, 1135 (9th Cir. 2009) ("A federal court is without personal jurisdiction over a defendant unless the defendant has been served in accordance with Fed. R. Civ. P. 4." (internal quotation marks omitted)). Thus, all parties have consented pursuant to 28 u.s.c. § 636(c) (1). See, e.g, Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (holding that magistrate judge had jurisdiction to dismiss prison inmate's action under 42 U.S.C. § 1983 as frivolous without consent of 2 1 The Court Will Abstain from Intervening in the Pending State III. 2 Proceedings. 3 Federal courts generally abstain from interfering with pending 4 state criminal 5 conviction. Braden, 410 U.S. at 489. In Younger v. Harris, 401 U.S. 6 37, 7 court's ability to intervene in an ongoing state criminal proceeding. 8 A federal court must abstain from addressing an asserted violation 9 of 43-54 a proceedings (1971), federal the before Supreme constitutional the Court right entry of a judgment strictly limited a where (1) state of federal judicial 10 proceedings are still pending, (2) the state proceedings implicate 11 important state interests, and (3) the state proceedings offer an 12 adequate opportunity to put forward the federal question. Middlesex 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 defendants because defendants had not been served yet and therefore were not parties); United States v. Real Property, 135 F.3d 1312, 1317 (9th Cir. 1998) (holding that magistrate judge had jurisdiction to enter default judgment in an in rem forfeiture action even though property owner had not consented to it because 28 U.S.C. § 636(c) (1) only requires the consent of the "parties" and the property owner, having failed to comply with the applicable filing requirements, was not a "party"); see also Patrick Collins, Inc. v. Doe, 2011 U.S. Dist. LEXIS 125671, at *4 n.1 (N.D. Cal. Oct. 31, 2011) ("Here, Plaintiff has consented to magistrate jurisdiction and the Doe Defendants have not yet been served. Therefore, the Court finds that it has jurisdiction under 28 U.S.C. § 636(c) to decide the issues raised in the instant motion(s) ."); Third World Media, LLC v. Doe, 2011 WL 4344160, at *3 (N.D. Cal. Sept. 15, 2011) ("The court does not require the consent of the defendants to dismiss an action when the defendants have not been served and therefore are not parties under 28 U.S.C. § 636(c) ."); Kukiela v. LMA Prof'l Recovery Group, 2011 U.S. Dist. LEXIS 85417, at *1 n.1 (D. Ariz. Aug. 1, 2011) ("Plaintiff consented to proceed before a United States Magistrate Judge for all proceedings in this case, including entry of final judgment, pursuant to 28 U.S.C. §636(c) (1). (Doc. 7.) Because Defendant did not appear and establish its standing as a party in this action, the Magistrate Judge has jurisdiction to enter the requested default judgment."); Quigley v. Geithner, 2010 WL 3613901, at *1 (D. Idaho Sept. 8, 2010) ("Plaintiff, the only party appearing in this case, has consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case."); Ornelas v. De Frantz, 2000 WL 973684, at *2 n.2 (N.D. Cal. June 29, 2000) ("The court does not require the consent of defendants in order to dismiss this action because defendants have not been served, and, as a result, are not parties under the meaning of 28 U.S.C. § 636(c) ."). 3 1 County Ethics Comm. 2 (1982); Dubinka v. Judges of the Superior Court, 23 F.3d 218, 223-24 3 (9th Cir. 4 abstention to be appropriate. Agriesti v. MGM Grand Hotels, Inc., 53 5 F.3d 1000, 1001 (9th Cir. 1995). v. Garden State Bar Ass'n, 457 U.S. 423, 432 1994). All three elements must be present in order for 6 Only when a person subject to state criminal prosecution can 7 show that he will suffer irreparable injury, which is both great and 8 immediate, may intervention be warranted. Younger v. Harris, 401 U.S. 9 at 46. Irreparable injury has been found where a state is attempting 10 to hold a second trial after a defendant has been tried on the same 11 offense, Mannes v. Gillespie, 967 F.2d 1310, 1312 (9th Cir. 1992). 12 Special circumstances which might warrant federal intervention before 13 trial also include proven harassment and bad faith prosecutions. 14 Carden v. 15 Ninth Circuit has held that in the absence of irreparable injury or 16 a bad faith prosecution, "abstention principles generally require a 17 federal district court to abstain from exercising jurisdiction over 18 a habeas petition in which the petitioner raises a claim under the 19 Speedy Trial Clause as an affirmative defense to state prosecution." 20 Brown v. Ahern, 676 F.3d 899, 903 (9th Cir. 2012); Carden v. Montana, 21 626 F.2d 82, 83-84 (9th Cir. 1980). Montana, 626 F.2d 82, 84 (9th Cir. 1980). However, the 22 In addition, although there is no exhaustion requirement under 23 section 2241(c) (3), principles of comity and federalism require a 24 federal court to abstain from deciding pre-conviction habeas corpus 25 challenges unless a petitioner demonstrates that (1) he has exhausted 26 available state judicial remedies, 27 warrant federal intervention." See Carden, 626 F.2d at 83-84. Here, 28 Petitioner has not raised these claims for relief in the California 4 and (2) "special circumstances 1 2 Court of Appeal or Supreme Court. Regardless, Petitioner has failed to demonstrate any special 3 circumstance 4 intervention and which cannot be addressed by the state courts in an 5 orderly fashion. 6 prior petitions that Petitioner simply is unhappy with the superior 7 court's rulings on pretrial matters and believes that the federal 8 courts should now intervene in his favor. Petitioner has therefore 9 failed to present any compelling reason for this federal court to 10 11 or irreparable injury that would warrant federal It is clear from the petition itself and the two interfere with the ongoing state criminal proceeding. All three elements warranting abstention are present. State 12 judicial proceedings are on-going; the state proceedings involve the 13 enforcement of state criminal laws, an important state interest; and 14 Petitioner 15 constitutional claims on appeal in the California courts, after he 16 is sentenced. Accordingly, the Court finds that abstention is proper 17 with respect to the still-pending failure to register charge. will have an adequate opportunity to raise his 18 19 III. Conclusion 20 For the reasons stated above, this petition is DISMISSED without 21 prejudice. A certificate of appealability will not issue. Reasonable 22 jurists would not find the dismissal of the petition as successive 23 debatable or wrong. 24 Dated: February 8, 2013 25 26 Marc L. Goldman United States Magistrate Judge 27 28 5
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