United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
is a state prisoner, proceeding pro se, with a petition for
writ of habeas corpus pursuant to 28 U.S.C. §
2254. Respondent moves to dismiss this action as
premature because petitioner's appeal of his current
conviction is pending in the California Court of Appeal.
Petitioner's motions for appointment of counsel, and for
stay pending his direct appeal, are also pending. For the
reasons stated below, respondent's motion should be
granted, and petitioner's motions for stay and for
appointment of counsel should be denied without prejudice.
Motion to Dismiss & Motion for Stay
court has authority under Rule 4 of the Rules Governing
Section 2254 Cases to dismiss a petition if it “plainly
appears from the face of the petition and any attached
exhibits that the petitioner is not entitled to relief in the
district court. . . .” Id. As a corollary to
that rule, the court may also consider a respondent's
motion to dismiss, filed in lieu of an answer, on the same
grounds. See, e.g., O'Bremski v. Maass,
915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate a
motion to dismiss for failure to exhaust state remedies);
White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989)
(using Rule 4 as the procedural vehicle to review a motion to
dismiss for state procedural default).
commenced this action on August 1, 2017. He challenges his
March 21, 2014 conviction of criminal threats and false
imprisonment. (ECF No. 1 at 1.) He was sentenced to a
determinate state prison term of fifteen years, appealed his
sentence, and the appeal remains pending in the California
Court of Appeal. (ECF No. 19 at 5, referencing case number
premature for this court to review petitioner's
collateral attack on his conviction before the state court
has had the opportunity to adjudicate the claims raised in
his direct appeal. See Younger v. Harris, 401 U.S.
37 (1971). Under Younger, federal courts may not
enjoin pending state criminal proceedings except under
extraordinary circumstances. Id. at 49, 53.
Younger abstention prevents a court from exercising
jurisdiction when three criteria are met: 1) there are
ongoing state judicial proceedings; 2) an important state
interest is involved; and 3) there is an adequate opportunity
to raise the federal question at issue in the state
proceedings. H.C. ex rel. Gordon v. Koppel, 203 F.3d
610, 613 (9th Cir. 2000).
three of these criteria are satisfied here. First, petitioner
has an appeal pending in the California Court of Appeal.
Second, California has “an important interest in
passing upon and correcting violations of a defendant's
rights.” Roberts v. Dicarlo, 296 F.Supp.2d
1182, 1185 (C.D. Cal. 2003). And third, the California state
courts provide an adequate forum in which petitioner may
pursue his claims. See id. When the state
proceedings have concluded and his conviction becomes final,
petitioner may seek federal habeas relief.
opposition, petitioner claims that Younger
abstention does not apply because his federal petition does
not include the claims he is raising in his direct appeal.
(ECF No. 21 at 2.) The “[a]pparent finality” of a
single claim, however, “is not enough.” Drury
v. Cox, 457 F.2d 764, 764-65 (9th Cir. 1972) (per
curiam). As another district court explained:
The Ninth Circuit has held unequivocally that the exhaustion
requirement is not satisfied if there is a pending proceeding
in state court, even if the issue the petitioner seeks to
raise in federal court has been finally determined by the
highest available state court. See Sherwood v.
Tomkins, 716 F.2d 632, 634 (9th Cir. 1983). This is
because the pending state action might result in reversal of
the conviction on some other ground, mooting the federal
case. See Id. In Sherwood a direct appeal
was pending although the federal issues had been decided by
the state courts via another procedural route. Although the
Younger abstention might seem a better rationale for
this requirement than exhaustion, see Phillips v.
Vasquez, 56 F.3d 1030, 1038-39 (9th Cir. 1995)
(concurring opinion), the requirement is nevertheless
well-established in this circuit.
Torres v. Yates, 2008 WL 2383871, at *2 (N.D. Cal.
June 9, 2008). Under the Younger doctrine, this
court must abstain from granting petitioner any relief until
his entire case has concluded in state court. Id. As
petitioner's direct appeal is pending, his underlying
action is ongoing, and this court cannot enter judgment in
petitioner's favor, and this action must be dismissed.
motion for stay, petitioner seeks stay and abeyance under
Rhines v. Weber, 544 U.S. 269 (2005), rather than
dismissal of this action. (ECF No. 22.) However, a stay would
be inappropriate. Under the Anti-terrorism and Effective
Death Penalty Act (“AEDPA”), a one-year
limitations period for seeking federal habeas relief begins
to run from “the date the judgment became final on
direct review.” 28 U.S.C. § 2244(d)(1)(A). Until
petitioner's new judgment and sentence is rendered final
“by conclusion of direct review or by the expiration of
the time for seeking such review, ” AEDPA's
one-year statute of limitations period will not begin to run.
See Burton v. Stewart, 549 U.S. 147, 156-57 (2007).
Because the statute of limitations period for the filing of a
federal habeas petition has not yet begun to run, it would be
inappropriate to grant a stay and abeyance. Bennett v.
Fisher, 2015 WL 6523689, at *1 (E.D. Cal. Oct. 27, 2015)
(stay inappropriate where limitations period has not even
begun to run); Henderson v. Martel, 2010 WL 2179913,
at *6-7 (E.D. Cal. May 26, 2010) (denying petitioner's
renewed motion for a stay and abeyance as premature).
for all of the above reasons, IT IS HEREBY RECOMMENDED that
respondent's motion to dismiss (ECF No. 17) be granted,
petitioner's motion for stay (ECF No. 22) be denied, and
the petition be dismissed, without prejudice, as premature.
See 28 U.S.C. § 2254(a); Juidice v.
Vail, 430 U.S. 327, 337 (1977) (if Younger
abstention applies, a court should dismiss the action).
Motion for ...