(HC) Dijante Lee Johnson v. Fresno County Superior Court House, No. 1:2017cv01668 - Document 4 (E.D. Cal. 2017)

Court Description: FINDINGS and RECOMMENDATIONS recommending that the Petition be Dismissed without prejudice as premature re 1 Petition for Writ of Habeas Corpus filed by Dijante Johnson ; referred to Judge O'Neill; new case number is 1:17-cv-1668 LJO-JLT (HC),signed by Magistrate Judge Jennifer L. Thurston on 12/16/17. Objections to F&R due by 1/11/2018 (Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DIJANTE LEE JOHNSON, 12 Petitioner, 13 14 No. 1:17-cv-01668-JLT (HC) ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE v. FRESNO COUNTY SUPERIOR COURT, 15 Respondent. 16 FINDINGS AND RECOMMENDATION TO DISMISS PREMATURE PETITION [TWENTY-ONE DAY OBJECTION DEADLINE] 17 Petitioner filed a habeas petition in this Court on December 12, 2017. He is currently 18 19 detained at the Fresno County Jail being tried for first degree murder. The Court finds the 20 petition to be premature and will recommend the petition be DISMISSED. DISCUSSION 21 22 23 A. Preliminary Review of Petition Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 24 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not 25 entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. 26 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of 27 habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 28 dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th 1 1 Cir.2001). 2 B. 3 4 5 Younger Abstention Petitioner is currently incarcerated in the Fresno County Jail. He states the criminal process is ongoing in Case No. 12-56603. He raises a number of claims concerning his trial. Under principles of comity and federalism, a federal court should not interfere with 6 ongoing state criminal proceedings by granting injunctive or declaratory relief except under 7 special circumstances. Younger v. Harris, 401 U.S. 37, 43-54 (1971). Younger abstention is 8 required when: (1) state proceedings, judicial in nature, are pending; (2) the state proceedings 9 involve important state interests; and (3) the state proceedings afford adequate opportunity to 10 raise the constitutional issue. Middlesex County Ethics Comm. V. Garden State Bar Ass’n, 457 11 U.S. 423, 432 (1982); Dubinka v. Judges of the Superior Court, 23 F.3d 218, 223 (9th Cir. 1994). 12 The rationale of Younger applies throughout the appellate proceedings, requiring that state 13 appellate review of a state court judgment be exhausted before federal court intervention is 14 permitted. Dubinka, 23 F.3d at 223 (even if criminal trials were completed at time of abstention 15 decision, state court proceedings still considered pending). 16 The law of habeas corpus also provides guidance on when a district court should abstain 17 from review of a claim. In order to be granted federal habeas corpus relief, the petition must have 18 exhausted his available state remedies. 28 U.S.C. § 2254(b). The rule of exhaustion is based on 19 comity to the state court and gives the state court the initial opportunity to correct the state's 20 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991). The 21 exhaustion requirement can be satisfied by providing the highest state court with a full and fair 22 opportunity to consider each claim before presenting it to the federal court. Picard v. Connor, 404 23 U.S. 270, 276 (1971) 24 In the instant case, state criminal proceedings are ongoing. California has an important 25 interest in passing upon and correcting violations of a defendant’s rights. Roberts v. Dicarlo, 296 26 F.Supp.2d 1182, 1185 (C.D. Cal. 2002) (citing Koerner v. Grigas, 328 F.3d 1039, 1046 (9th Cir. 27 2003). Finally, the California Court of Appeal and the California Supreme Court are adequate 28 forums for Petitioner to seek relief for his claims. Roberts, 296 F.Supp.2d at 1185. Therefore, 2 1 the Court recommends that the petition be dismissed pursuant to Younger. 2 3 4 5 RECOMMENDATION Accordingly, the Court RECOMMENDS that the petition be DISMISSED WITHOUT PREJUDICE as premature. This Findings and Recommendation is submitted to the United States District Court Judge 6 assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 7 of the Local Rules of Practice for the United States District Court, Eastern District of California. 8 Within twenty-one days after being served with a copy, any party may file written objections with 9 the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 10 Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 11 U.S.C. § 636 (b)(1)(C). Failure to file objections within the specified time may waive the right to 12 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 14 15 IT IS SO ORDERED. Dated: December 16, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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