United States District Court, S.D. California
REPORT AND RECOMMENDATION RE PETITIONER'S MOTION
FOR STAY [ECF No. 5]
HONORABLE JAN M. ADLER UNITED STATES MAGISTRATE JUDGE
Ronald Duane Dunham moves to stay a state court restitution
proceeding in San Diego Superior Court pending a decision on
his petition to this Court for a writ of habeas corpus. (ECF
No. 5.) The Court recommends the motion be DENIED.
December 14, 2014, Petitioner was convicted by a jury of
seven counts of grand theft, six counts of elder theft, seven
counts of security fraud, and one count of perjury in San
Diego Superior Court Case No. SCD246838. (Pet., ECF No. 1 at
1.) He was sentenced to twelve years in state prison.
Id. He was released from prison on October 13, 2017
and is currently on community supervision in Riverside County
with a projected release date of October 11, 2018.
Id. On February 7, 2018, the California Court of
Appeal reversed the convictions for grand theft involving
elder adults and attendant true findings on loss
enhancements, but affirmed the judgment in all other
respects. Id. at 2-3. On April 18, 2018, the
California Supreme Court denied a petition for review.
Id. at 3 & 152. Petitioner did not seek
collateral review in state court. Id. at 4. On May
4, 2018, Petitioner filed his federal petition for writ of
habeas corpus in this Court.
to Petitioner's trial, the trial court froze the bank
accounts of a company controlled by Petitioner, Rodan
Enterprises, LLC (“Rodan”), pursuant to
California Penal Code section 186.11 to preserve assets for
victim restitution. (Pet., Ex. D, ECF No. 1 at
327.) Section 186.11, known as the “Freeze
and Seize Law, ” is designed to provide restitution to
victims of white collar crimes from assets under the
convicted criminal's control. Id. At trial, the
jury found a section 186.11 aggravated white collar crime
enhancement allegation to be true. Id. Scott Lee, a
third party claimant who was not involved in Petitioner's
criminal activities, asserted he had invested $400, 000 in
Rodan and was entitled to recover that amount from the frozen
funds. Id. at 328. On February 5, 2016, at the
restitution hearing, the court ordered (1) the named victims
in the prosecution's charging document would receive full
restitution for their losses and (2) any remaining funds
would be paid to two individuals, one of whom was Mr. Lee.
Id. On February 7, 2018, the California Court of
Appeal denied a petition for writ of mandamus filed by Mr.
Lee, finding the trial court was not required to distribute
an equitable share of the frozen funds to Mr. Lee, and
vacated the stay it had previously issued as to the trial
court's restitution order. Id. at 338-39. On
April 18, 2018, the California Supreme Court denied a
petition for review, and dissolved the stay of the
restitution order it had previously granted in order to
consider the petition for review. Id. at 324-25.
judges may stay any state court proceeding for any matter
involved in a habeas corpus proceeding. 29 U.S.C. §
2251(a)(1). Whether to grant a stay is in the “sound
discretion” of the court. McFarland v. Scott,
512 U.S. 849, 857-58 (1994). Under principles of comity and
federalism, a federal court should not interfere with ongoing
state criminal proceedings by granting injunctive or
declaratory relief absent extraordinary circumstances.
Younger v. Harris, 401 U.S. 37, 43-46 (1971)
(extraordinary circumstances exist when there is danger of
great and immediate irreparable loss); Carden v.
Montana, 626 F.2d 82, 84 (9th Cir. 1980) (applying
Younger to habeas petition challenging state
pretrial proceedings; federal intervention appropriate only
under “special circumstances, ” such as proven
harassment, bad faith prosecution, or other extraordinary
circumstances resulting in irreparable injury). Any
irreparable injury must be beyond “that incidental to
every criminal proceeding brought lawfully and in good
faith.” Younger, 401 U.S. at 46-47.
argues a stay of the restitution proceedings should be
granted because he has raised thirteen grounds in his federal
habeas petition, the California Court of Appeal and
California Supreme Court issued stays, and Petitioner and
innocent third parties will suffer irreparable injury if the
stay is not granted as the restitution order permits the
seizure and distribution of assets belonging to Petitioner
and others who were not charged with any criminal offenses.
(Motion, ECF No. 5 at 3.) Petitioner further contends a stay
would not substantially harm any other parties as the assets
have remained frozen since 2013 and are not in any danger of
being removed. Id.
reasons are insufficient to stay the state court restitution
order and proceedings. The harm asserted by Petitioner is not
irreparable, as loss of money can be remedied by an award of
damages. Petitioner does not want to pay restitution before
his federal habeas proceeding is concluded on the chance his
convictions will be overturned, but this same sentiment is
likely held by the majority of habeas petitioners who are
ordered to pay restitution. Petitioner has been convicted,
and the state appellate courts have, in substantial part,
upheld his convictions. Mr. Lee's third party claim to
the frozen assets has been considered by the state trial and
appellate courts, and his request for relief was denied.
Petitioner has not identified any special circumstances
warranting a stay.
Court accordingly recommends Petitioner's motion for stay
be DENIED. This report and recommendation will be submitted
to the Honorable Gonzalo P. Curiel, United States District
Judge assigned to this case, pursuant to the provisions of 28
U.S.C. § 636(b)(1). Any party may file written
objections with the Court and serve a copy on all parties on
or before June 13, 2018. The
document should be captioned “Objections to Report and
Recommendation.” Any reply to the Objections shall be
served and filed on or before June 27,
2018. The parties are advised that failure to
file objections within the specified time may waive the right
to appeal the district court's order. Martinez v.
Ylst, 951 F.2d 1153 (9th Cir. 1991).
 The background information set forth
in this paragraph is taken from a decision of the California
Court of Appeal in Scott Lee v. Superior Court of San
Diego County, Case No. D070075. Mr. Lee was a third
party claimant seeking to appeal the trial court's
restitution order ...