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United States District Court, Northern District of California

September 2, 2003


The opinion of the court was delivered by: Susan Illston, District Judge


Joseph Johnson, Jr., is a convicted felon who completed the sentence on his criminal conviction and was civilly committed in 2000 as a sexually violent predator pursuant to California's Sexually Violent Predators Act, Cal. Welf. & Inst. Code § 6600, et seq. ("SVPA"). The original civil commitment apparently was for a two-year term and expired on May 24, 2002. The State of California has begun proceedings to seek Johnson's continued civil commitment under the SVPA for another two-year term.

Johnson has filed a federal habeas petition challenging the ongoing proceedings to continue his civil commitment. In his petition, he alleges that the state trial court erroneously overruled his demurrer and motion to dismiss, that his attorney provided ineffective assistance with respect to the demurrer and motion to dismiss, and that his right to due process was violated. The petition discloses that the trial to determine whether Johnson's civil commitment should continue has not yet taken place and that a probable cause hearing was scheduled for June 19, 2003. (Although Johnson does not report the result of the probable cause hearing, most likely a determination was made that there was probable cause to hold him over for the civil commitment trial because he was in custody when he filed his federal petition several weeks Page 1


The action is dismissed without prejudice to petitioner filing a new petition for writ of habeas corpus after his state court civil commitment proceedings and any appeal therefrom have concluded.

IT IS SO ORDERED AND ADJUDGED Page 2 thereafter on July 15, 2003.)

Principles of comity and federalism require that this court abstain and not entertain a pre-sentence habeas challenge unless the petitioner shows that: (1) he has exhausted available state judicial remedies, and (2) "special circumstances" warrant federal intervention. Garden v. Montana, 626 F.2d 82, 83-84 (1980), cert. denied, 449 U.S. 1014 (1980); see also Younger v. Harris, 401 U.S. 37, 43-54 (1971) (under principles of comity and federalism, a federal court should not interfere with ongoing state criminal proceedings by granting injunctive or declaratory relief absent extraordinary circumstances). The special circumstances that might warrant federal habeas intervention before trial include proven harassment, bad faith prosecutions and other extraordinary circumstances where irreparable injury can be shown. Carden, 626 F.2d at 84. Because petitioner has not shown special circumstances that warrant federal intervention before the trial is held and appeal is completed, his petition is DISMISSED without prejudice. See id at 84.

The action also is dismissed for the independent reason that a proper respondent was not named in the petition. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996). Although the absence of a proper respondent is a defect that ordinarily could be cured by amendment of the petition, leave to amend will not be granted because abstention is required with or without the proper respondent.

Johnson's in forma pauperis application is DENIED. (Docket #2.) His in forma pauperis application does not satisfy 28 U.S.C. § 1915(a)'s requirement that a non-prisoner who wishes to proceed as a pauper submit "an affidavit that includes a statement of all assets such prisoner [sic] possesses that the person is unable to pay such fees or give security therefor." Johnson's in forma pauperis application merely explained that he was not a prisoner, but non-prisoner status is not the determining factor in whether a litigant will be allowed to proceed as a pauper: the court must have information about an applicant's financial wherewithal to decide whether pauper status is appropriate. Because the action is being dismissed, the court will not require Page 3 Johnson to provide a completed non-prisoner in forma pauperis application.

The clerk shall close the file.



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