United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE.
a state prisoner proceeding in pro se, has filed an
application for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. The matter was referred to the United States
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and
Local Rule 302(c).
September 13, 2019, the undersigned issued an order directing
both parties to update the court on whether petitioner's
state remedies had been fully exhausted. ECF No. 8. At the
time, it was unclear to the court whether petitioner's
resentencing proceedings had been completed after a remand by
the California Third Appellate District, Court of Appeal; and
whether petitioner had completed or began his direct appeal.
Id. After reviewing petitioner and respondent's
briefing, ECF Nos. 12, 13, it is apparent that
petitioner's habeas petition is premature based on a
pending direct appeal in the California Third Appellate
District, Court of Appeal. ECF No. 13-1 at 1.
exhaustion of state court remedies is a prerequisite to the
granting of a petition for writ of habeas corpus. 28 U.S.C.
§ 2254(b)(1). If exhaustion is to be waived, it must be
waived explicitly by respondent's counsel. 28 U.S.C.
§ 2254(b)(3). A waiver of exhaustion, thus, may not be
implied or inferred. A petitioner satisfies the exhaustion
requirement by providing the highest state court with a full
and fair opportunity to consider all claims before presenting
them to the federal court. Picard v. Connor, 404
U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d
1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S.
1021 (1986). Here, the petition is premature because
petitioner has a pending direct appeal and accordingly, has
not fully exhausted his available state court remedies.
See Daniels v. Nelson, 415 F.2d 323, 323 (9th Cir.
1969) (“Prisoner's petition for writ of habeas
corpus brought while his appeal of conviction was still
pending in state court was premature since he still had
remedies available in state courts.”); see also
Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983)
(“When, as in the present case, an appeal of a state
criminal conviction is pending, a would-be habeas corpus
petitioner must await the outcome of his appeal before his
state remedies are exhausted, even where the issue to be
challenged in the writ of habeas corpus has been finally
settled in the state courts.”)
respondent argues the abstention doctrine requires dismissal
of the federal habeas petition in light of petitioner's
pending direct appeal of his criminal proceedings before the
California Third Appellate District, Court of Appeal.
Younger abstention is appropriate when the following
criteria are met: (1) state judicial proceedings are pending;
(2) the state proceedings implicate important state
interests; and (3) the state proceedings provide an adequate
opportunity in state court to raise constitutional
challenges. See Middlesex County Ethics Committee v.
Garden State Bar Ass'n, 457 U.S. 423, 432, 102 S.Ct.
2515 (1982). Absent extraordinary circumstances, this court
is barred from directly interfering with petitioner's
ongoing criminal proceedings in state court. See Younger
v. Harris, 401 U.S. 37, 46, 48-50 (1971); Brown v.
Ahern, 676 F.3d 899, 903 (9th Cir. 2012)
(“abstention principles generally require a federal
district court to abstain from exercising jurisdiction over a
habeas petition in which the petitioner raises a claim under
the Speedy Trial Clause as an affirmative defense to state
prosecution.”); Carden v. Montana, 626 F.2d
82, 84 (9th Cir. 1980) (exceptions to the general rule of
federal abstention arise only in “cases of proven
harassment or prosecutions undertaken by state officials in
bad faith without hope of obtaining a valid conviction,
” or “in other extraordinary circumstances where
irreparable injury can be shown.”). Younger
abstention is appropriate here due to the pendency of
petitioner's direct appeal in the Court of Appeal; the
ongoing criminal appeal proceedings that implicate important
state interests; and petitioner's adequate opportunity to
raise constitutional challenges in state court. Finally,
there is no applicable exception to the Younger
abstention established in this case.
these reasons, petitioner's habeas petition should be
dismissed without prejudice to petitioner's filing of a
new federal habeas petition after the exhaustion of his state
IT IS HEREBY RECOMMENDED that petitioner's petition for
writ of habeas corpus be dismissed without prejudice.
findings and recommendations are submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within twenty-one
days after being served with these findings and
recommendations, petitioner may file written objections with
the court. The document should be captioned “Objections
to Magistrate Judge's Findings and
Recommendations.” Failure to file objections within the