United States District Court, N.D. California, Eureka Division
ORDER OF DISMISSAL
NANDOR J. VADAS, Magistrate Judge.
Petitioner, a state prisoner, filed a pro se petition for writ of mandate and stay of appellate proceeding. (Doc. 1.) The court construed the petition as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 and dismissed the petition with leave to amend. (Doc. 6.) Petitioner has now filed an amended petition. (Doc. 7.)
A. Standard of Review
This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court must "specify all the grounds for relief available to the petitioner... [and] state the facts supporting each ground." Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. "[N]otice' pleading is not sufficient, for the petition is expected to state facts that point to a real possibility of constitutional error.'" Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 1970)).
B. Legal Claims
From the original petition it appeared that petitioner was convicted in state court and his direct appeal to the California Court of Appeal was currently being prepared by appointed counsel. Petitioner argued that there were violations of due process during his trial and that trial counsel was ineffective. Petitioner asserted that appellate counsel was ineffective and was not presenting certain claims on appeal. Petitioner filed several petitions for writ of mandate in state court, which were all denied. This court dismissed the original petition with leave to amend for petitioner to address the issue of exhaustion and Younger abstention. (Doc. 6.)
An application for a federal writ of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court may not be granted unless the prisoner has first exhausted state judicial remedies, either by way of a direct appeal or in collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every issue he or she seeks to raise in federal court. See 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). Petitioner has the burden of pleading exhaustion in his habeas petition. See Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).
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. See Younger v. Harris, 401 U.S. 37, 43-54 (1971). Federal courts should not enjoin pending state criminal prosecutions absent a showing of the state's bad faith or harassment, or a showing that the statute challenged is "flagrantly and patently violative of express constitutional prohibitions." Younger, 401 U.S. at 46, 53-54 (cost, anxiety and inconvenience of criminal defense are not special circumstances or irreparable harm that would justify federal court intervention; statute must be unconstitutional in every "clause, sentence and paragraph, and in whatever manner" it is applied). The rationale of Younger applies throughout the appellate proceedings, requiring that state appellate review of a state court judgment be exhausted before federal court intervention is permitted. Gilbertson v. Albright, 381 F.3d 965, 969 n. 4 (9th Cir. 2004).
Abstention may be inappropriate in the "extraordinary circumstance" that (1) the party seeking relief in federal court does not have an adequate remedy at law and will suffer irreparable injury if denied equitable relief, see Mockaitis v. Harcleroad, 104 F.3d 1522, 1528 (9th Cir. 1997) (citing Younger, 401 U.S. at 43-44), or (2) the state tribunal is incompetent by reason of bias, see Gibson v. Berryhill, 411 U.S. 564, 577-79 (1973). A party who alleges bias must overcome a presumption of honesty and integrity in those serving as adjudicators. See Hirsh v. Justices of the Supreme Court of Cal., 67 F.3d 708, 713 (9th Cir. 1995) (citation omitted).
Petitioner's amended petition fails to cure the deficiencies in his original petition. He seeks to have this court appoint new appellate counsel in state court or allow petitioner to proceed pro se in state court. The court finds, however, that petitioner has failed to demonstrate extraordinary circumstances to warrant intervention in an ongoing state proceeding. That he disagrees with his appellate counsel is not sufficient overcome the principles of comity explained in Younger and he must pursue that relief in state court. To the extent petitioner wishes to challenge his underlying conviction he must wait until his claims are fully exhausted. The court therefore concludes that it plainly appears from the face of the petition that petitioner is not entitled to habeas corpus relief. The court must therefore dismiss the petition. See Rule 4, Rules Governing Section 2254 Cases in the United States District Courts.
The petition is DISMISSED for the reasons set forth above.
Because reasonable jurists would not find the result here debatable, a certificate of appealability ("COA") is DENIED. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000) ...