United States District Court, E.D. California
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
is proceeding without counsel. He consented to proceed before
the undersigned for all purposes. See 28 U.S.C.
§ 636(c). On January 19, 2017, this action was dismissed
because petitioner's criminal appeal was pending,
requiring this court to abstain under Younger v.
Harris, 401 U.S. 37, 43-54 (1971). On February 2, 2017,
petitioner filed a motion for reconsideration; petitioner
argues that his appeal will be “further delayed or even
dismissed since the superior court clerk (or appointed
counsel) failed to file the notice of appeal and the related
evidence.” (ECF No. 8 at 1.) Petitioner states that his
newly-appointed counsel Alison Cohen is attempting to rectify
this issue, but the outcome is uncertain. Petitioner argues
that the delays are caused by the state, not petitioner, who
has suffered long enough in jail on allegedly false charges.
(ECF No. 8 at 2.) Petitioner asks that if his request is
denied, the court “send [him his] right to appeal. (ECF
No. 8 at 2.)
appends two documents to his motion. First, in a January 24,
2017 letter addressed to petitioner from Cohen, counsel
provided petitioner with “copies of all of the
documents in [counsel's] possession that [petitioner]
[has] submitted to the court and they have marked
‘Received' and then forwarded to [counsel's]
office.” (ECF No. 8 at 3.) Counsel noted that the last
two, dated 9/29/16 and 10/24/16 were not marked received;
because counsel received these documents from the court,
counsel could not explain why the documents were not stamped.
(Id.) Counsel then stated:
It occurred to me that it may be unclear to the Placer
clerks' office whether they should file the documents
because they are outside the appeal and Placer is technically
only handling the appeal. It may help if I file a motion for
clarification with the Placer County Appellate Division and
ask for a court order that states that the Placer County
Clerk should file all documents that you submit, in light of
the El Dorado County Bench being recused.
I left a message with the El Dorado County Appellate Clerk
asking if there was a second Notice of Appeal filed that
addressed the final judgment.
(ECF No. 8 at 3.) This letter references El Dorado County
Superior Court Case No. S16CRM 0096. (Id.)
petitioner provided a copy of a motion styled, “motion
to augment the record on appeal; motion to extend briefing
schedule; request for bail/release on appeal.” (ECF No.
8 at 4.) This motion is dated December 30, 2016, signed by
Cohen, and bears the Placer County Superior Court caption,
but references Case No. S16CRM 0096, the case initially filed
in El Dorado County Superior Court. The motion does not bear
any court's file-stamp. (ECF No. 8 at 4.) In the motion,
counsel requested that the court augment the record with
particular exhibits, to extend the briefing schedule so that
counsel could review the exhibits, to stay execution of the
sentence and release petitioner on his own recognizance.
forth below, the motion for reconsideration, is granted, and
upon reconsideration, the motion for relief from judgment
under Rule 60(b) of the Federal Rules of Civil Procedure is
denied, and, to the extent petitioner asks the court to order
any state court to expedite his appeal, such request is
dismissed for lack of habeas jurisdiction.
was convicted in July of 2016, for driving when privilege
suspended or revoked for driving under the influence of
alcohol or drugs; driving with knowledge of such suspension,
revocation or restriction; and displaying registration or
identification card not issued for vehicle with intent to
avoid compliance with registration requirements. (ECF No. 1
at 1.) He was sentenced on July 11, 2016 to a jail term of
one and a half years. (Id.) Petitioner confirms he
filed an appeal. (ECF No. at 1.)
claims that he has filed a petition for writ of habeas corpus
in the California Supreme Court, but that the petition
remained pending as of December 5, 2016. (ECF No. 1 at 4.)
The California Supreme Court website reflects that the
petition was denied on January 11, 2017. Robben (Todd) on
Habeas Corpus, Case No. S238441 (Cal.
raises multiple claims for relief in the instant petition.
March 1, 2017, petitioner filed a notice of change of
address, reflecting his release from jail on March 6, 2017.
(ECF No. 9.) However, in other cases filed by petitioner, he
filed a notice of change of address reflecting he was
retained in jail, and ultimately transferred to the
Sacramento County Jail, where he remains housed at ...