(HC) Gill v. People Of California, No. 2:2017cv02095 - Document 20 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 7/30/18 RECOMMENDING that respondent's motion to dismiss 13 be granted and the petition be dismissed without prejudice. MOTION to DISMISS 13 referred to Judge Morrison C. England Jr. 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 KENDAL SCOTT GILL, 12 No. 2:17-cv-2095 MCE DB P Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS RICK HILL,1 14 15 Respondent. 16 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a 17 18 writ of habeas corpus under 28 U.S.C. § 2254. Petitioner alleges his no contest plea was based on 19 false evidence and ineffective assistance of counsel. He further alleges ineffective assistance of 20 appellate counsel. Before the court is respondent's motion to dismiss. For the reasons set forth 21 below, the court recommends respondent's motion be granted. BACKGROUND 22 On June 15, 2016, petitioner pleaded no contest to corporal injury on a cohabitant with a 23 24 prior assault conviction and admitted a prior prison term allegation. The trial court imposed a 25 26 27 28 Rick Hill is the current Acting Warden of Folsom State Prison, where petitioner is currently housed. Accordingly, he is substituted as the respondent in this matter pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. See Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992). 1 1 1 suspended sentence of four years and ordered formal probation. (LD 1.2) Shortly thereafter, a 2 petition for revocation of probation was filed, based on petitioner’s alleged violation of the 3 conditions of his probation. (See Req. for Cert. of Probable Cause (ECF No. 1 at 16).) In 4 addition, petitioner sought to withdraw his plea. (See id.) 5 6 On September 28, 2016, the trial court suspended criminal proceedings based on doubts about petitioner’s mental competency and ordered a psychological examination. (LD 2.) 7 On September 30, 2016, petitioner filed a notice of appeal and requested a certificate of 8 probable cause to challenge the denial of his motion to withdraw his plea, to challenge the 9 judgment and sentence themselves, and to challenge the charge that he violated the terms of his 10 probation. (ECF No. 1 at 16; Ex. A to Mot. to Dismiss (ECF No. 13-1 at 2).) The Court of 11 Appeal granted the certificate of probable cause and the appeal is currently pending. 3 12 Petitioner filed a habeas petition here on October 5, 2017. (ECF No. 1.) On April 20, 13 2018, respondent moved to dismiss the petition. (ECF No. 13.) Petitioner filed an opposition 14 (ECF No. 16) and respondent filed a reply (ECF No. 17). 15 MOTION TO DISMISS 16 Respondent moves to dismiss the petition on the grounds that this court must abstain from 17 considering a state prisoner’s habeas case when he has a pending state proceeding challenging the 18 same conviction. (ECF No. 13.) In opposition, petitioner argues the state proceedings are so 19 lengthy that he will likely serve his sentence before they are resolved. (ECF No. 16.) 20 I. 21 Legal Standards for Motion to Dismiss Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 22 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not 23 entitled to relief in the district court . . . .” Rule 4, Rules Governing Section 2254 Cases; see also 24 White v. Lewis, 874 F.2d 599, 602–03 (9th Cir. 1989) (meritorious motions to dismiss permitted 25 2 26 27 28 Respondent lodged state court records with his motion to dismiss. (See ECF No. 14.) Each document is referenced herein by its Lodged Document (“LD”) number. The docket for petitioner’s state appeal, #C083128 is available on the state appellate courts’ website: http://appellatecases.courtinfo.ca.gov. A court may take judicial notice of “matters of public record” pursuant to Federal Rule of Evidence 201. 2 3 1 under Rule 4); Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983) (Rule 4 “explicitly 2 allows a district court to dismiss summarily the petition on the merits when no claim for relief is 3 stated”); Vargas v. Adler, No. 1:08-cv-1592 YNP [DLB] (HC), 2010 WL 703211, at *2 (E.D. 4 Cal. 2010) (granting motion to dismiss a habeas claim for failure to state a cognizable federal 5 claim). 6 Moreover, the Advisory Committee Notes to Rule 8 of the Rules Governing Section 2254 7 Cases indicate that the court may dismiss a petition for writ of habeas corpus: on its own motion 8 under Rule 4; pursuant to the respondent's motion to dismiss; or after an answer to the petition 9 has been filed. See, e.g., Miles v. Schwarzenegger, No. CIV S-07-1360 LKK EFB P, 2008 WL 10 3244143, at *1 (E.D. Cal. Aug.7, 2008) (dismissing habeas petition pursuant to respondent's 11 motion to dismiss for failure to state a claim), rep. and reco. adopted, No. CIV S-07-1360 (E.D. 12 Cal. Sept. 26, 2008). However, a petition for writ of habeas corpus should not be dismissed 13 without leave to amend unless it appears that no tenable claim for relief can be pleaded were such 14 leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 15 16 II. Younger Abstention Because petitioner’s criminal appeal remains pending, this court should abstain from 17 addressing the instant petition. Principles of comity and federalism weigh against a federal court 18 interfering with ongoing state criminal proceedings by granting injunctive or declaratory relief 19 absent extraordinary circumstances. Younger v. Harris, 401 U.S. 37, 43-54 (1971). Younger 20 abstention is required when 1) state proceedings, judicial in nature, are pending; 2) state 21 proceedings involve important state interests; and 3) the state proceedings afford adequate 22 opportunity to raise the constitutional issue. See Middlesex County Ethic Comm. v. Garden State 23 Bar Ass’n., 457 U.S. 423, 432 (1982); Ohio Civil Rights Comm’n v. Dayton Christian Schs., Inc., 24 477 U.S. 619, 627 (1986). 25 A petitioner must await the outcome of the state appellate proceeding “even where the 26 issue to be challenged in the writ of habeas corpus has been finally settled in the state courts.” 27 Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983). This is because “the pending appeal 28 may result in reversal of the petitioner's conviction on some other ground, thus mooting the 3 1 federal question.” Id. “When a case falls within the proscription of Younger, a district court 2 must dismiss the federal action.” Fresh Int’l Corp. v. Agricultural Labor Relations Bd., 805 F.2d 3 1353, 1356 (9th Cir. 1986). In addition, there is no discretion to grant injunctive relief if the case 4 is within the Younger category of cases. Id. (citing Colorado River Water Conservation Dist. v. 5 United States, 424 U.S. 800, 816 n.22 (1976)). 6 Petitioner concedes the direct appeal of his criminal conviction was pending when he filed 7 his petition here and remains pending. (See ECF No. 1 at 2; ECF No. 16 at 1.) Criminal 8 proceedings, by their very nature, involve important state interests. Petitioner has an adequate 9 opportunity to raise the constitutional issues underlying his conviction in either his habeas case4 10 or his direct appeal. Irreparable injury does not exist in such situations if the threat to petitioner’s 11 federally protected rights may be eliminated by his appeal of the criminal case. Moreover, “even 12 irreparable injury is insufficient [to permit interference with the proceeding] unless it is ‘both 13 great and immediate.’” Younger, 401 U.S. at 46 (quoting Fenner v. Boykin, 271 U.S. 240, 243- 14 44 (1926)). Petitioner has failed to demonstrate irreparable injury. Petitioner argues that the state court’s delay in determining his appeal justifies an 15 16 exception to Younger abstention. The Ninth Circuit does recognize an exception for 17 “extraordinary delay.” Phillips v. Vasquez, 56 F.3d 1030, 1034 (9th Cir. 1995) (fifteen-year 18 delay in capital case justified exception to Younger abstention). Here, petitioner filed his appeal 19 in the state appellate court in October 2016. He filed this action just a year later in October 2017. 20 Any delay petitioner is experiencing in the processing of his appeal is hardly comparable to the 21 22 23 24 25 26 27 28 Petitioner states that he has exhausted his state court remedies through habeas petitions he filed in the state superior, appellate, and supreme courts. (ECF No. 1 at 3-4.) Petitioner states that the state courts summarily denied his petitions. (Id. at 12.) With his petition, petitioner attached a copy of the superior court’s denial of his state habeas petition. (Id. at 22.) The court denied the petition on the grounds that it raised the same issues that were then pending before the court of appeal. (Id.) Therefore, the issues petitioner raises here have not yet been addressed on their merits by the state’s highest court as required for exhaustion. See 28 U.S.C. § 2254(b)(1) (exhaustion of state court remedies is a prerequisite to granting a petition for writ of habeas corpus). Picard v. Connor, 404 U.S. 270, 276 (1971) (A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court.); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985). 4 4 1 fifteen-year delay in Phillips and is not out-of-the-ordinary. See, e.g., Hamilton v. Calderon, 134 2 F.3d 938, 939 (9th Cir. 1998) (where sentence under review by state court for less than two years 3 when federal habeas filed, petitioner not subjected to “extreme delay” under Phillips); Alvarez v. 4 Barnes, No. CV 13-367 RGK(CW), 2013 WL 3200514, at *3 (C.D. Cal. June 21, 2013) (noting 5 that “[t]here is no indication in the record that the approximate seventeen months during which 6 petitioner’s state appeal has been pending is either unusual or unreasonable so as to warrant 7 immediate federal intervention”). 8 9 The court finds the delay in resolution of state court proceedings in the present case is neither extreme nor unreasonably long. Thus, the undersigned declines to depart from the general 10 rule that petitioner must wait until his state court conviction is final before he can seek federal 11 habeas review. See Edelbacher v. Calderon, 160 F.3d 582, 583 (9th Cir. 1998). 12 Because there has been no extreme delay in petitioner's case, and in light of principles of 13 comity and the risk of piecemeal litigation, the undersigned concludes that the Younger doctrine 14 requires dismissal of this action without prejudice. See Beltran v. California, 871 F.2d 777, 782 15 (9th Cir. 1988) (“Where Younger abstention is appropriate, a district court cannot refuse to 16 abstain, retain jurisdiction over the action, and render a decision on the merits after the state 17 proceedings have ended. To the contrary, Younger abstention requires dismissal of the federal 18 action.” (Emphasis in original; citations omitted.)). 19 20 21 For the foregoing reasons, IT IS HEREBY RECOMMENDED that respondent's motion to dismiss (ECF No. 13) be granted and the petition be dismissed without prejudice. These findings and recommendations will be submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 23 after being served with these findings and recommendations, any party may file written 24 objections with the court and serve a copy on all parties. The document should be captioned 25 “Objections to Magistrate Judge's Findings and Recommendations.” Any response to the 26 objections shall be filed and served within seven days after service of the objections. The parties 27 are advised that failure to file objections within the specified time may result in waiver of the 28 right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In the 5 1 objections, the party may address whether a certificate of appealability should issue in the event 2 an appeal of the judgment in this case is filed. See Rule 11, Rules Governing § 2254 Cases (the 3 district court must issue or deny a certificate of appealability when it enters a final order adverse 4 to the applicant). 5 Dated: July 30, 2018 6 7 8 9 10 11 12 13 14 15 DLB:9 DB/prisoner-habeas/gil2095.mtd 16 17 18 19 20 21 22 23 24 25 26 27 28 6