(HC) McCoy v. Beard, No. 2:2014cv01999 - Document 15 (E.D. Cal. 2014)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 12/11/14 recommending that respondent's motion to dismiss 13 be granted; and the petition be dismissed without prejudice. MOTION to DISMISS 13 referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)
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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 JOE LYNN McCOY, 12 Petitioner, 13 14 No. 2:14-cv-1999 JAM CKD P v. FINDINGS AND RECOMMENDATIONS JEFFREY A. BEARD, 15 Respondent. 16 17 I. Introduction In this pro se prisoner action pursuant to 28 U.S.C. § 2254, petitioner challenges his 2010 18 19 conviction for torture, infliction of corporal injury, and related offenses. (ECF No. 1 at 1.) 20 Before the court is respondent’s unopposed motion to dismiss the petition as premature, as an 21 appeal of petitioner’s criminal sentence is currently pending in the state court of appeal. (ECF 22 No. 13.) Having carefully reviewed the record and applicable law, the undersigned will 23 recommend that respondent’s motion be granted. 24 II. Procedural History In December 2010, following a jury trial in the Sacramento County Superior Court, 25 26 petitioner was convicted of multiple offenses stemming from an attack on his girlfriend that left 27 her paralyzed. He was sentenced to an indeterminate term of 25 years to life in state prison. 28 ///// 1 1 (Lod. Doc. 2 at 2.)1 Petitioner appealed his convictions. On May 3, 2013, the California Court of 2 Appeal, Third Appellate District, affirmed the convictions but remanded for resentencing on two 3 counts, citing an error in the abstract of judgment and the fact that “the trial court neglected to 4 impose sentence on counts 2 and 3 before staying their execution pursuant to Penal Code 654, 5 resulting in an unauthorized absence of sentence.” (Lod. Doc. 2 at 2-3, 56.) Petitioner sought 6 review in the California Supreme Court, which denied review on August 14, 2013. (Lod. Docs. 7 3-4.) 8 9 On September 27, 2013, petitioner filed a notice of appeal from his resentencing in the Third District Court of Appeal. (Lod. Doc. 1.) On July 14, 2014, he filed his opening brief, 10 asking the court of appeal to independently review the record for any arguable issues pursuant to 11 People v. Wende, 25 Cal. 3d 435 (1979). (Id.) On August 25, 2014, petitioner’s appeal was 12 deemed fully briefed, and an opinion has yet to issue. (Id.) 13 Petitioner filed the instant action on August 28, 2014, but did not indicate that an appeal 14 of his resentencing was pending. (ECF No. 1.) 15 III. Analysis 16 A federal court generally will not enjoin or directly intercede in ongoing state court 17 proceedings absent the most unusual circumstances. Younger v. Harris, 401 U.S. 37 (1971). 18 Federal courts will abstain if the state proceeding 1) is currently pending, 2) involves an 19 important state interest, and 3) affords the petitioner an adequate opportunity to raise 20 constitutional claims. Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 21 423, 432 (1982). 22 In Phillips v. Vasquez, 56 F.3d 1030 (9th Cir. 1995), the Ninth Circuit considered whether 23 Younger abstention was warranted where a federal habeas petitioner’s capital conviction was 24 final but his sentence was still being appealed. It reasoned: “The state has already adjudicated 25 Phillips’ guilt, its decision in that regard is final, and Phillips seeks nothing more than federal 26 27 1 Lodged Documents refer to documents lodged by respondent on October 28, 2014. (ECF No. 14.) 28 2 1 review of that decision. The ongoing state proceeding involves sentencing only, and the state is 2 free to continue with its sentencing determination.” (Id. at 1033.) In such circumstances, the 3 court concluded that the Younger doctrine did not preclude federal review of petitioner’s claims. 4 More recently, however, Phillips has been characterized as a narrow holding that turned 5 on the “unreasonably long delay” in the capital appeals process in Phillips’ case. Edelbacher v. 6 Calderon, 160 F.3d 582, 585-586 (9th Cir. 1998). In a case where no unusual delay existed, the 7 Ninth Circuit “decline[d] to depart from the general rule that a petitioner must await the outcome 8 of the state proceedings before commencing his federal habeas corpus action.” Id. at 582-583; 9 see id. at 586, n.5 (citing cases). See also Dean v. Sandor, 2011 WL 3652383 (C.D. Cal. July 12, 10 2011) (where federal petition challenges constitutionality of conviction, and direct appeal of 11 sentence is pending, Edelbacher controls, and petition must be dismissed pending outcome of 12 state proceedings) (findings and recommendations adopted by district court on August 18, 2011). 13 Because there has been no extreme delay in petitioner’s case, and in light of principles of 14 comity and the risk of piecemeal litigation, the undersigned concludes that the Younger doctrine 15 requires dismissal of this action without prejudice. See Beltran v. California, 871 F.2d 777, 782 16 (9th Cir. 1988) (“Where Younger abstention is appropriate, a district court cannot refuse to 17 abstain, retain jurisdiction over the action, and render a decision on the merits after the state 18 proceedings have ended. To the contrary, Younger abstention requires dismissal of the federal 19 action.”) (emphasis in original).2 Petitioner may re-file a federal habeas action when state 20 proceedings concerning his conviction and sentence are complete. 21 Accordingly, IT IS HEREBY RECOMMENDED THAT: 22 1. Respondent’s motion to dismiss (ECF No. 13) be granted; and 23 2. The petition be dismissed without prejudice. 24 These findings and recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 26 after being served with these findings and recommendations, petitioner may file written 27 28 2 As Younger abstention is appropriate, the court does not address respondent’s alternative argument that this action be administratively stayed during the pendency of the appeal. 3 1 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 2 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 3 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 4 F.2d 1153 (9th Cir. 1991). 5 Dated: December 11, 2014 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 2/mcco1999.156b 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
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