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Robben v. D'Agostini

United States District Court, E.D. California

June 12, 2017

TODD ROBBEN, Petitioner,
v.
JOHN D'AGOSTINI, Respondent.

          ORDER

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Petitioner 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.)

         Petitioner 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.)

         Second, 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.

         As set 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.

         II. Background

         Petitioner 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.)

         Petitioner 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. S.Ct.).[1]

         Petitioner raises multiple claims for relief in the instant petition.

         On 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 ...


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