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McGill v. Marshall


August 4, 2009


The opinion of the court was delivered by: Valerie Baker Fairbank United States District Judge


On July 30, 2009, petitioner Desmond McGill, a person in state custody proceeding pro se, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his 2007 conviction and sentence for carjacking and robbery in Los Angeles Superior Court case no. SA065045,*fn1 following a plea of nolo contendere. Petition at 2. The petition shows on its face that petitioner has a petition for writ of certiorari pending in the United States Supreme Court. Petition at 3.


The seminal case of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed. 2d 669 (1971) 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). Abstention in favor of state judicial proceedings is required if the proceedings are ongoing, implicate important state interests and afford an adequate opportunity to raise federal questions, and if the federal relief sought would interfere in some manner with the state court litigation. Middlesex County Ethics Comm'n, 457 U.S. at 432, 102 S.Ct. at 2521; Green v. City of Tucson, 255 F.3d 1086, 1094 (9th Cir. 2001)(en banc).

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 is not yet final.*fn2 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 court criminal proceedings afford an opportunity for petitioner, who is the defendant, to raise constitutional claims, such as he raises herein. Finally, the remedy the petitioner seeks, 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.

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 judgment is not yet final; 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.

DATE: July 30, 2009


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