(HC)Hardney v. Superior Court of California County of Amador, No. 2:2015cv01336 - Document 4 (E.D. Cal. 2015)
Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 7/6/15 ORDERING that petitioner's motion to proceed in forma pauperis is granted; and the Clerk of the Court is directed to assign a district judge to this case ; and IT IS RECOMMENDED that petitioner's application for a writ of habeas corpus be dismissed without leave to amend, and this action be closed. Randomly assigned and referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Dillon, 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 JOHN HARDNEY, 12 Petitioner, 13 14 15 No. 2:15-cv-1336 KJN P v. ORDER AND FINDINGS AND RECOMMENDATIONS SUPERIOR COURT OF CALIFORNIA, COUNTY OF AMADOR, Respondent. 16 Petitioner is a state prisoner, proceeding without counsel. On June 23, 2015, petitioner 17 18 filed a petition for writ of habeas corpus in which he challenges the Amador County Superior 19 Court’s denial of petitioner’s motion to dismiss in an ongoing criminal prosecution. (ECF No. 1 20 at 2.) 21 Petitioner seeks leave to proceed in forma pauperis. Examination of the in forma pauperis 22 affidavit reveals that petitioner is unable to afford the costs of suit. Accordingly, the request for 23 leave to proceed in forma pauperis is granted. See 28 U.S.C. § 1915(a). The court must now 24 determine if the action is frivolous or malicious. 25 This court may entertain a petition for writ of habeas corpus “in behalf of a person in 26 custody pursuant to the judgment of a State court only on the ground that he is in custody in 27 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A 28 district court considering an application for a writ of habeas corpus shall “award the writ or issue 1 1 an order directing the respondent to show cause why the writ should not be granted, unless it 2 appears from the application that the applicant or person detained is not entitled thereto.” 28 3 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in the petition are 4 vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. 5 Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 6 Federal courts cannot interfere with pending state criminal proceedings, absent 7 extraordinary circumstances which create a threat of irreparable injury. Younger v. Harris, 401 8 U.S. 37, 45-46 (1971). Irreparable injury does not exist in such situations if the threat to 9 plaintiff’s federally protected rights may be eliminated by his defense of the criminal case. 10 Moreover, “even irreparable injury is insufficient [to permit interference with the proceeding] 11 unless it is ‘both great and immediate.’” Id. at 46 (quoting Fenner v. Boykin, 271 U.S. 240, 243- 12 44 (1926)). “The Younger doctrine was borne of the concern that federal court injunctions might 13 14 unduly hamper a state in its prosecution of criminal laws.” Miofsky v. Superior Court, 703 F.2d 15 332, 336 (9th Cir. 1983). In practical terms, the Younger doctrine means that “‘only in the most 16 unusual circumstances is a defendant entitled to have federal interposition by way of injunction or 17 habeas corpus until after the jury comes in, judgment has been appealed from and the case 18 concluded in the state courts.’” Carden v. Montana, 626 F.2d 82, 83-84 (9th Cir. 1980) (quoting 19 Drury v. Cox, 457 F.2d 764, 764-65 (9th Cir.1972)), cert. denied, 449 U.S. 1014 (1980). 20 Here, petitioner is not challenging his underlying conviction.1 Rather, petitioner 21 challenges his arrest and detention in which he was bound over for trial in the Amador County 22 Superior Court, Case No. 14CR22899, as well as the superior court’s denial of his motion to 23 dismiss. The alleged criminal charges are based on petitioner’s conduct while housed at Mule 24 Creek State Prison, and the Amador County Superior Court website reflects that petitioner’s case 25 is set for preliminary hearing on August 10, 2015. Petitioner has not yet been convicted. 26 1 27 28 Court records reflect that petitioner was sentenced to life, plus 28 years, 8 months, in state prison, following his conviction in Sacramento County Superior Court for violations of kidnaping for robbery, sexual battery, rape with force, and vehicle theft. Hardney v. Carey, No. 2:05-cv1451 LKK EFB (E.D. Cal.) (ECF No. 16-1 at 2-3). 2 1 Petitioner alleges no facts demonstrating the extraordinary circumstances required to 2 interfere in pending state criminal proceedings. See Younger, 401 U.S. at 37 (only in the most 3 unusual of circumstances should a federal court interfere in an ongoing state criminal matter). 4 Therefore, the petition should be dismissed.2 A petition for writ of habeas corpus should not be 5 dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded 6 were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir.1971); see also Klamath-Lake 7 Pharm. Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir.1983) (holding that 8 while leave to amend shall be freely given, the court does not have to allow futile amendments). 9 Here, in light of the nature of petitioner’s claims in the pending petition for federal habeas relief, 10 it is apparent that granting leave to amend would be futile. 11 In accordance with the above, IT IS HEREBY ORDERED that: 12 1. Petitioner’s motion to proceed in forma pauperis is granted; and 13 2. The Clerk of the Court is directed to assign a district judge to this case; and 14 IT IS RECOMMENDED that petitioner’s application for a writ of habeas corpus be 15 dismissed without leave to amend, and this action be closed. 16 These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 18 after being served with these findings and recommendations, petitioner may file written 19 objections with the court and serve a copy on all parties. Such a document should be captioned 20 “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections, 21 he shall also address whether a certificate of appealability should issue and, if so, why and as to 22 which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the 23 applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 24 § 2253(c)(3). Petitioner is advised that failure to file objections within the specified time may 25 2 26 27 28 Petitioner is presently challenging the underlying prison disciplinary on which the pending criminal charges are based, along with claims for invasion of privacy and Eighth Amendment violations, in Hardney v. Turner, No. 2:14-cv-2962 MCE DAD (E.D. Cal.). Petitioner also challenged the underlying prison disciplinary in a habeas action which was dismissed for lack of habeas jurisdiction on April 22, 2015. Hardney v. Virga, No. 2:14-cv-0826 JAM EFB (E.D. Cal.). 3 1 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 2 1991). 3 Dated: July 6, 2015 4 5 /hard1336.156 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
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