United States District Court, E.D. California
ADOPTING FINDINGS AND RECOMMENDATIONS (DOC. NO. 18) ORDER
GRANTING RESPONDENT'S MOTION TO DISMISS (DOC. NO. 13)
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS ORDER
DENYING PETITIONER'S MOTION FOR STAY OF PROCEEDINGS (DOC.
NO. 15) ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND
CLOSE CASE ORDER DECLINING TO ISSUE CERTIFICATE OF
Lawrence J. O'Neill UNITED STATES CHIEF DISTRICT JUDGE
is a state prisoner proceeding in propria persona with a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. On September 4, 2019, the Magistrate Judge
assigned to the case issued Findings and Recommendation to
grant Respondent's motion to dismiss and deny
Petitioner's motion for stay. (Doc. No. 18.) This
Findings and Recommendation was served upon all parties and
contained notice that any objections were to be filed within
twenty-one days from the date of service of that order. On
September 19, 2019, Petitioner filed objections to the
Magistrate Judge's Findings and Recommendations. (Doc.
objections, Petitioner argues that the incorrect standard was
applied. (Doc. 19 at 4-6.) However, the Rules Governing
Section 2254 Cases may be applied to petitions for writ of
habeas corpus other than those brought under § 2254 at
the Court's discretion. See Rule 1 of the Rules Governing
Section 2254 Cases. Civil Rule 81(a)(2) provides that the
rules are “applicable to proceedings for . . . habeas
corpus . . . to the extent that the practice in such
proceedings is not set forth in statutes of the United States
and has heretofore conformed to the practice of civil
actions.” Fed. R. Civ. P 81(a)(2). Regardless, under
Younger abstention, the Court should abstain.
continues to contend that Younger abstention does
not apply to this case. (Doc. 19 at 9-11.) However, as
thoroughly discussed in the Findings and Recommendation, all
three criteria for Younger abstention are satisfied,
and no exception to Younger exists. (Doc. 18 at
4-12.) It is appropriate for this Court to abstain from
considering Petitioner's challenges to the pending SVPA
proceedings. See Babinski v. Voss, 323 Fed.Appx. 617
(9th Cir. 2009) (affirming dismissal on Younger
abstention grounds of habeas petition challenging ongoing
California SVPA proceedings).
also raises the contention that the petition is not a mixed
petition. (Doc. 19 at 11.) However, regardless of whether the
petition is a mixed petition, it is appropriate for this
Court to abstain from considering Petitioner's challenges
to the pending SVPA proceedings. There is an ongoing state
proceeding regardless of whether the claims are exhausted or
also belatedly raises a new claim for relief in the
objections, specifically, that Petitioner has been denied the
equal protection of law, creating a “class of
one.” (Doc. 19 at 6-9.) Because Petitioner failed to
raise this claim in his petition, the court should disregard
the claim. See Cacoperdo v. Demosthenes, 37 F.3d
504, 507 (9th Cir. 1994) (a traverse is not the proper
pleading to raise additional grounds for relief). However,
subsequent case law holds that a district court "has
discretion, but is not required," to consider evidence
and claims raised for the first time in objections to a
magistrate judge's report. United States v.
Howell, 231 F.3d 615, 621 (9th Cir. 2000); see also
Brown v. Roe, 279 F.3d 742, 745 (9th Cir. 2002)
(remanded for district court to exercise discretion whether
to review new claim raised in objections). The district court
must, however, "actually exercise its discretion"
and not merely accept or deny the new claims.
Howell, 231 F.3d at 622. In light of this
discretion, the court will review this claim.
Petitioner did not include the new claim in his petition
filed in the California Supreme Court, the new claim is
unexhausted. However, a court may dismiss a claim on the
merits notwithstanding a petitioner's failure to fully
exhaust state judicial remedies. 28 U.S.C. § 2254(b)(2);
Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir.
2005) (federal court considering a habeas petition may deny
an unexhausted claim on the merits when it is clear that the
claim is not colorable).
Fourteenth Amendment's Equal Protection Clause is
"essentially a direction that all persons similarly
situated should be treated alike." City of Cleburne,
v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
Petitioner can establish an equal protection claim by showing
that the Respondent intentionally discriminated against
Petitioner based on his membership in a protected class,
see Lee v. City of Los Angeles, 250 F.3d 668, 686
(9th Cir. 2001), or that similarly situated individuals were
treated differently without a rational basis for the
difference in treatment. See Village of Willowbrook v.
Olech, 528 U.S. 562, 564 (2000).
makes no claim that he is a member of a protected class.
Therefore, to state an equal protection claim under the
latter theory, Petitioner must allege that (1) he was
intentionally treated differently from other similarly
situated individuals; and (2) there is no rational basis for
the difference in treatment. See Engquist v. Oregon
Department of Agriculture, 553 U.S. 591, 601 (2008). In
this case, Petitioner has failed to either provide any basis
for showing either that he was intentionally treated
differently than others similarly situated or that there was
no rational basis for the difference in treatment. Thus, he
is not entitled to federal habeas relief under an equal
accordance with the provisions of 28 U.S.C. § 636
(b)(1)(C), the Court has conducted a de novo review of the
case. Having carefully reviewed the entire file, including
Petitioner's objections, the Court concludes that the
Magistrate Judge's Findings and Recommendation is
supported by the record and proper analysis. Petitioner's
objections present no grounds for questioning the Magistrate
addition, the Court declines to issue a certificate of
appealability. A state prisoner seeking a writ of habeas
corpus has no absolute entitlement to appeal a district
court's denial of his petition, and an appeal is only
allowed in certain circumstances. Miller-El v.
Cockrell, 537 U.S. 322, 335-336 (2003). A successive
petition under 28 U.S.C. § 2255 that is disguised as a
§ 2241 petition required a certificate of appealability.
Harrison v. Ollison, 519 F.3d 952, 958 (9th Cir.
2008); Porter v. Adams, 244 F.3d 1006, 1007 (9th
Cir. 2001). The controlling statute in determining whether to
issue a certificate of appealability is 28 U.S.C. §
2253, which provides as follows:
(a) In a habeas corpus proceeding or a proceeding under
section 2255 before a district judge, the final order shall
be subject to review, on appeal, by the court of appeals for
the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a
proceeding to test the validity of a warrant to remove to
another district or place for commitment or trial a person
charged with a criminal offense against the United States, or
to test the ...