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Gilbert v. Moore

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 25, 2008

FRED DWAYNE GILBERT, PETITIONER,
v.
S.R. MOORE, WARDEN,*FN1 RESPONDENT.

ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se and in forma pauperis with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On August 1, 2008, respondent filed a motion to dismiss this action because petitioner's direct review is still pending in state court.

Principles of federalism and comity require that this court abstain until all state criminal proceedings are completed and the petitioner exhausts available judicial state remedies, unless special circumstances warranting federal intervention prior to a state criminal trial can be found. See 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); Samuels v. Mackell, 401 U.S. 66, 68-74, 91 S.Ct. 764 (1971). Younger abstention is required when: (1) state proceedings, judicial in nature, are pending ; (2) the state proceedings involve important state interests; and (3) the state proceedings afford adequate opportunity to raise the constitutional issues. See Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432, 102 S.Ct. 2515 (1982). The rationale of Younger applies throughout appellate proceedings, requiring that state appellate review of a state court judgment be completed before federal court intervention is permitted. See Huffman v. Pursue, Ltd., 420 U.S. 592, 607-11, 95 S.Ct. 1200 (1975); Dubinka v. Judges of the Superior Court, 23 F.3d 218, 223 (9th Cir.1994) (finding state court proceedings pending where criminal trial completed at time of abstention decision). Here, criminal proceedings are still considered pending against petitioner in state court because of the pending appeal in the California Court of Appeal. (Document Lodged August 1, 2008.) There is no indication that petitioner does not have an adequate opportunity to present his claims in those proceedings. Because a decision on the instant federal petition would interfere with the pending criminal proceedings in the state court, this court must abstain from deciding the instant petition.

In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court shall change the name of respondent as noted above (see footnote 1); and

IT IS RECOMMENDED that respondent's August 1, 2008 motion to dismiss be granted. (Docket No. 12.)

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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