The opinion of the court was delivered by: James V. Selna United States District Judge
OPINION AND ORDER ON A PETITION FOR HABEAS CORPUS
On January 13, 2009, petitioner Prentice Durrell Booker, Sr., a person in state custody proceeding pro se, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging the Superior Court's "time calculation, and time credits."*fn1 Petition at 2. The petition shows that petitioner has not appealed his conviction and sentence to the California Court of Appeal, and has not sought review or collateral relief from the California Supreme Court. Petition at 2-6.
The petitioner's state criminal conviction is not yet final. In the context of federal habeas review, a state criminal conviction is final when "a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied." Griffith v. Kentucky, 478 U.S. 314, 321 n.6, 107 S.Ct. 708, 712, 93 L.Ed. 2d 649 (1987); Clay v. United States, 537 U.S. 522, 527, 123 S.Ct. 1072, 1076, 155 L.Ed. 2d 88 (2003). Here, the petition shows petitioner has not appealed his conviction nor sought review or certiorari. See Petition at 2 (Petitioner has checked the box "No" to the question "Did you appeal from the judgment of conviction or the imposition of sentence?", and further states he is "not sure if attorney did."); Petition at 5 (Petitioner has checked the box "No" to the question "Have you filed previous petitions for habeas corpus, . . . or any other applications, petitions or motions with respect to this conviction.").
Since petitioner's criminal conviction is not yet final, the seminal case of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed. 2d 669 (1971) applies. Younger establishes that under principles of comity and federalism, a federal court should not interfere with ongoing state criminal proceedings by granting injunctions or declaratory relief absent extraordinary circumstances. Id. at 44, 91 S.Ct. at 750; Middlesex County Ethics Comm'n v. Garden State Bar Ass'n, 457 U.S. 423, 431, 102 S.Ct. 2515, 2521, 73 L.Ed. 2d 116 (1982); Samuels v. Mackell, 401 U.S. 66, 69, 91 S.Ct. 764, 766, 27 L.Ed. 2d 688 (1971). This principle of "Younger abstention" is also applicable to claims raised in federal habeas corpus proceedings. Edelbacher v. Calderon, 160 F.3d 582, 587 (9th Cir. 1998); Carden v. State of Montana, 626 F.2d 82, 83-85 (9th Cir.), cert. denied, 449 U.S. 1014 (1980).
Here, all the prerequisites to the application of abstention under Younger have been met. First, petitioner is currently the subject of a criminal proceeding in state court, which has not reached final adjudication. H.C. v. Koppel, 203 F.3d 610, 613 (9th Cir. 2000); Dubinka v. Judges of the Superior Court, 23 F.3d 218, 223 (9th Cir. 1994). Second, the State undeniably has an important interest in protecting the public by the filing and prosecuting of criminal proceedings. Seling v. Young, 531 U.S. 250, 262, 121 S.Ct. 727, 734, 148 L.Ed. 2d 734 (2001). Third, the state appellate process affords the opportunity for petitioner to raise a challenge to the Superior Court's calculation of his "time credits." Finally, the remedy the petitioner seeks, the issuance of a writ of habeas corpus, would clearly interfere with the ongoing state criminal proceeding, see Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S.Ct. 1827, 1833, 36 L.Ed. 2d 439 (1973) ("[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and . . . the traditional function of the writ is to secure release from custody."), and petitioner has not identified any "extraordinary circumstances" warranting an exception to the Younger doctrine.
Moreover, as noted above, petitioner is seeking federal court review of a state criminal proceeding before he has exhausted his state court remedies, as required by federal statute. 28 U.S.C. § 2254(b), (c); McQueary v. Blodgett, 924 F.2d 829, 833 (9th Cir. 1991). The petitioner must be convicted and sentenced and have appealed his conviction to the California Supreme Court and/or sought post-conviction habeas corpus relief from the California Supreme Court before his claim is ripe for federal habeas review. Here, petitioner has not exhausted his state court remedies.
Rule 4 of the Rules Governing Section 2254 Cases in the United States Courts provides that "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify petitioner." The instant petition shows that petitioner's state court criminal proceeding is not final, and he has not exhausted his state court remedies; thus, the petition must be dismissed without prejudice.
IT IS ORDERED that Judgment be entered DISMISSING without prejudice the petition for writ of habeas corpus and action.
IT IS FURTHER ORDERED that the Clerk of Court shall notify petitioner of the dismissal without prejudice.
ROSALYN M. CHAPMAN UNITED STATES ...