United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DISMISS WITHOUT
PREJUDICE PETITION FOR WRIT OF HABEAS CORPUS
is a state prisoner proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
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). 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).
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).
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.”
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).
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).
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.
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