The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Petitioner, a county jail inmate proceeding without counsel, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.
Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).
Petitioner challenges an August 27, 2010 "commitment" order in which petitioner was bound over for trial in the San Joaquin County Superior Court. Review of the San Joaquin County Superior Court's Criminal Case Inquiries System reveals that there is a criminal case SF 113430A pending against petitioner, and petitioner's next court hearing is on October 3, 2011, for "motion calendar."*fn1 Petitioner states he has been charged with nine counts of violating California Penal Code § 288(a), one count of violating California Penal Code § 299, one count of violating California Penal Code § 288(a)(1), one count of violating California Penal Code § 647.6, and one count of violating California Penal Code § 311.11(a), and enhancements for eight counts of violating California Penal Code § 1203.066(a)(8), and seven counts of violating California Penal Code § 1203.066(a)(7). While not entirely clear, it appears petitioner has not yet been tried and convicted on these charges.
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 plaintiff'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 (internal citation omitted).
"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.) (internal citation omitted).
If petitioner disputes findings entered in his pending criminal proceedings, or his representation during pending criminal proceedings, he must address them to the superior court or on appeal in state court. A petition for writ of habeas corpus filed in federal court addresses a final conviction or sentence, and any claims contained in such a petition must first be exhausted before presentation to a federal court. 28 U.S.C. § 2254(b)(1).
Although it appears unlikely petitioner can amend to rectify the above defects, petitioner will be provided one opportunity to amend his petition, in the event petitioner is challenging a conviction that is final, and has exhausted his habeas claims. If, however, petitioner is challenging actions taken in the currently pending criminal proceedings in Case Number SF 113430A, petitioner may file a voluntary dismissal of this action. Fed. R. Civ. P. 41(a). However, petitioner is cautioned that if he is challenging the pending criminal proceedings and files an amended petition challenging the pending criminal proceedings, the court will recommend that this action be dismissed under Younger, 401 U.S. at 45-46.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner's application to proceed in forma pauperis is granted;
2. Petitioner's application for writ of habeas corpus is dismissed with leave to file an amended petition or a request for voluntary dismissal within thirty days from the date of this order;
3. Any amended petition must be filed on the form employed by this court, must name the proper respondent, must be signed by petitioner, and must state all claims and prayers for relief on the form. It must bear the case number assigned to this action and must bear the title "Amended Petition"; and
4. The Clerk of the Court is directed to send petitioner the form for habeas corpus application, and an application to proceed ...