ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of mandate pursuant to 28 U.S.C. § 2241, together with a request to proceed in forma pauperis.
Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted. See 28 U.S.C. § 1915(a).
Petitioner has previously filed a petition for writ of mandate in which he claimed he was wrongly convicted of failure to register as a sex offender pursuant to Cal. Penal Code § 290. See Case No. 2:06-cv-2063 JAM EFB P.*fn1 Petitioner was advised that
[f]ederal courts lack jurisdiction to issue a writ of mandamus to a state court. Demos v. United States Dist. Court for the E. Dist. of Wash., 925 F.2d 1160, 1161 (9th Cir. 1991), citing 28 U.S.C. § 1651. . . . Generally, a state prisoner may file in federal court either a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he seeks relief from the fact or duration of his confinement, or a civil rights complaint pursuant to 42 U.S.C. § 1983, in which he seeks money damages for the violation of a constitutional right by a state actor.
(Case No. 2:06-cv-2063 JAM EFB P, June 12, 2008 Order at 1.) The petition in Case No. 2:06-cv-2063 was dismissed with leave to amend, and the action was subsequently terminated based on petitioner's failure to file an amended petition.
Petitioner has again filed a petition for writ of mandate. A review of the Sacramento County Superior Court's website reflects petitioner was sentenced to a misdemeanor violation of California Penal Code § 290(G)(1) (Case No. 05M08755) on April 9, 2008,*fn2 and he was sentenced to felony violations of California Penal Code §§ 243(d) and 245(A)(1) (Case No. 07F07653)*fn3 on July 9, 2008.
The authority of the federal courts "to grant habeas relief to state prisoners is limited by § 2254, which specifies the conditions under which such relief may be granted to 'a person in custody pursuant to the judgment of a State court.'" Felker v. Turpin, 518 U.S. 651, 662 (1996) (citation omitted); see also Greenawalt v. Stewart, 105 F.3d 1287, 1287 (9th Cir. 1997). While petitioner attempts to frame his challenge as a petition for writ of mandate, his claims are more properly brought by way of petition for writ of habeas corpus pursuant to § 2254. A petitioner may not "avoid the limitations imposed on successive petitions by styling his petition as one pursuant to § 2241." Greenawalt, 105 F.3d at 1287; see also White v. Lambert, 370 F.3d 1002 (9th Cir. 2004)(all habeas cases filed by state prisoners arise under § 2254; there is no subcategory of § 2241 for state prisoners.)
Moreover, petitioner is advised that the exhaustion of available state remedies is a prerequisite to a federal court's consideration of claims sought to be presented in habeas corpus proceedings. See Rose v. Lundy, 455 U.S. 509 (1982); Carothers v. Rhay, 594 F.2d 225 (9th Cir. 1979); 28 U.S.C. § 2254(b). "A petitioner may satisfy the exhaustion requirement in two ways:
(1) by providing the highest state court with an opportunity to rule on the merits of the claim . . . ; or (2) by showing that at the time the petitioner filed the habeas petition in federal court no state remedies are available to the petitioner and the petitioner has not deliberately by-passed the state remedies." Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir. 1982) (citations omitted). The exhaustion doctrine is based on a policy of federal and state comity, designed to give state courts the initial opportunity to correct alleged constitutional deprivations. See Picard v. Connor, 404 U.S. 270, 275 (1971).
Petitioner alleges he has "exhausted all available remedies." (Pet., at 6.) However, petitioner does not specify what remedies he exhausted, nor does he claim he has presented petitions for each conviction to the state supreme court. Moreover, given the recent sentencing in the two criminal cases set forth above, April 9, 2008 and July 9, 2008, it is unlikely that all of those claims have been decided by the California Supreme Court. A search of the California Supreme Court website reflects no petition for review filed for petitioner for 2008 convictions.*fn4 Because it appears petitioner has not yet exhausted his state court remedies, the court will recommend dismissing the petition without prejudice to its renewal once petitioner exhausts his state court remedies.
Petitioner also seeks injunctive relief. Petitioner asks that the respondent court be restrained and prohibited from using petitioner's prior convictions to support future charges and to prevent the state court from allowing petitioner to be charged again with another violation of California Penal Code § 290.
The legal principles applicable to a request for injunctive relief are well established. To prevail, the moving party must show either a likelihood of success on the merits and the possibility of irreparable injury, or that serious questions are raised and the balance of hardships tips sharply in the movant's favor. See Coalition for Economic Equity v. Wilson, 122 F.3d 692, 700 (9th Cir. 1997); Oakland Tribune, Inc. v. Chronicle Publ'g Co., 762 F.2d 1374, 1376 (9th Cir. 1985). The two formulations represent two points on a sliding scale with the focal point being the degree of irreparable injury shown. Oakland Tribune, 762 F.2d at 1376. "Under any formulation of the test, petitioner must demonstrate that there exists a significant threat of irreparable injury." Id. In the absence of a significant showing of possible irreparable harm, the court need not reach the issue of likelihood of success on the merits. Id.
Federal courts cannot interfere with pending state criminal proceedings, absent extraordinary circumstances which create a threat of irreparable injury. Younger v. Harris, 401 U.S. 37, 45-46 (1971). Irreparable injury does not exist in such situations if the threat to petitioner's federally protected rights may be eliminated by his defense of the criminal case. Moreover, "even irreparable injury is insufficient [to permit interference with the proceeding] unless it is 'both great and immediate.'" Id. at 46 (quoting Fenner v. Boykin, 271 U.S. 240, 243-44 (1926)).
"The Younger doctrine was borne of the concern that federal court injunctions might unduly hamper a state in its prosecution of criminal laws." Miofsky v. Superior Court, 703 F.2d 332, 336 (9th Cir. 1983). In practical terms, the Younger doctrine means that "'only in the most unusual circumstances is a defendant entitled to have federal interposition by way of injunction or habeas corpus until after the jury comes in, judgment has been appealed from and the case concluded in the state courts.'" Carden v. Montana, 626 F.2d 82, 83-84 (9th Cir.) (quoting Drury v. Cox, 457 F.2d 764, 764-65 (9th Cir. 1972)), cert. denied, 449 U.S. 1014 (1980). A federal court should abstain from adjudicating a lawsuit if (1) there are pending state judicial proceedings, (2) the state proceedings implicate important ...