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Poslof v. Warnke

United States District Court, E.D. California

November 3, 2017

LONNIE LEE POSLOF, JR., Petitioner,
v.
VERN WARNKE, Respondent.

          FINDINGS AND RECOMMENDATION TO DISMISS WITHOUT PREJUDICE PETITION FOR WRIT OF HABEAS CORPUS

         Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

         I.

         BACKGROUND

         On August 21, 2017, Petitioner filed the instant federal petition for writ of habeas corpus. (ECF No. 1). At the time the petition was filed, Petitioner was confined at the Merced County jail. (ECF No. 1 at 1).[1] In the petition, Petitioner alleges ineffective assistance of counsel and due process violations arising from his Merced County criminal proceeding, which involves violations of California Penal Code sections 288(a), 288a(c), and 228.7. (ECF No. 1 at 1, 4). Although the petition states that the length of Petitioner's sentence is twenty-seven years to life, the petition also states that Petitioner is pending sentencing. (ECF No. 1 at 1).

         On September 8, 2017, the Court ordered Petitioner to show cause why the petition should not be dismissed without prejudice pursuant to Younger v. Harris, 401 U.S. 37 (1971), based on Petitioner's ongoing state criminal proceeding. (ECF No. 6). On October 20, 2017, the Court received Petitioner's response wherein Petitioner alleges that his criminal proceeding (Case No. CRM028634) became final on August 28, 2017. (ECF No. 9).

         II.

         DISCUSSION

         Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a habeas petition and allows a district court to dismiss a petition before the respondent is ordered to file a response, if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.”

         “Younger abstention is a jurisprudential doctrine rooted in overlapping principles of equity, comity, and federalism.” San Jose Silicon Valley Chamber of Commerce Political Action Comm. v. City of San Jose, 546 F.3d 1087, 1091 (9th Cir. 2008). In Younger, the Supreme Court held that when there is a pending state criminal proceeding, federal courts must refrain from enjoining the state prosecution. Younger, 401 U.S. at 41; Sprint Commc'ns, Inc. v. Jacobs, 134 S.Ct. 584, 588 (2013). See also Kowalski v. Tesmer, 543 U.S. 125, 133 (2004) (“The doctrine of Younger v. Harris . . . reinforces our federal scheme by preventing a state criminal defendant from asserting ancillary challenges to ongoing state criminal procedures in federal court.”). The Ninth Circuit has interpreted Younger to mean 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.” Drury v. Cox, 457 F.2d 764, 764-65 (9th Cir. 1972).

         In the petition, Petitioner states that the length of his sentence is twenty-seven years to life, but also states that he is pending sentencing. (ECF No. 1 at 1). In Petitioner's response to the order to show cause, Petitioner alleges that his criminal proceeding became final on August 28, 2017. (ECF No. 9 at 1). Although Petitioner's Merced County Superior Court criminal proceeding may have concluded, Petitioner currently has an appeal pending in the California Court of Appeal, Fifth Appellate District, People v. Poslof, No. F076258 (Cal.Ct.App. filed Sept. 13, 2017).[2]

         Petitioner also asserts that he has exhausted state judicial remedies because he filed a state habeas petition in the California Supreme Court that raised the same ineffective assistance of counsel and due process claims he raises in the instant federal petition. (ECF No. 9 at 2). However, the “apparent finality” of his claims “is not enough.” Drury, 457 F.2d at 765. The pertinent inquiry is whether Petitioner has been sentenced, “judgment has been appealed from and the case concluded in the state courts.” Id.

         As the instant federal habeas petition challenges Petitioner's ongoing criminal proceeding in state court, the Court should abstain from interfering with the state judicial process pursuant to Younger, and the petition should be dismissed.

         III.

         RECO ...


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