(HC)Singh v. Pfeiffer

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 RAGHVENDRA SINGH, Case No. 2:21-cv-01731-JDP (HC) 12 Petitioner, ORDER: 13 v. (1) GRANTING PETITIONER’S APPLICATION TO PROCEED IN FORMA 14 C. PFEIFFER, PAUPERIS; 15 Respondent. (2) FINDING THAT THE PETITION DOES NOT STATE A COGNIZABLE CLAIM AND 16 GRANTING LEAVE TO AMEND WITHIN SIXTY DAYS [17] ECF Nos. 1 & 2 [18] 19 Petitioner, proceeding without counsel, seeks a writ of habeas corpus under 28 U.S.C. 20 § 2254. After reviewing the petition, I find that the petition cannot proceed because: (1) it 21 appears that petitioner’s direct appeal of his conviction is still pending; and (2) he is attacking two 22 separate state proceedings. I will give petitioner an opportunity to amend. 23 The amended petition is before me for preliminary review under Rule 4 of the Rules 24 Governing Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must 25 examine the habeas petition and order a response to the petition unless it “plainly appears” that 26 the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 27 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). [28] 1 Petitioner states that he was convicted in March 2020, in the Sacramento County Superior 2 | Court, of filing false proofs of service. ECF No. | at 1. He notes that his direct appeal from that 3 | conviction is still pending, but that he has separately filed a habeas petition with the California 4 | Supreme Court, which has been rejected. Jd. at 1-2. This action must be dismissed if the direct 5 || appeal is, in fact, still pending. See Espinoza v. Montgomery, 107 F. Supp. 3d 1038, 1042 (N.D. 6 | Cal. May 27, 2015) (holding that the abstention doctrine announced in Younger v. Harris, 401 7 | U.S. 37 (1969) “applies throughout appellate proceedings, requiring that state appellate review of 8 | a state court judgment be exhausted before federal court intervention is permitted.”). 9 More broadly, the petition, which is pled haphazardly, appears to attack at least two 10 | different proceedings. As mentioned above, the petition addresses the state conviction for filing 11 | false proofs of service. It also, however, argues that the state’s refusal to grant petitioner parole 12 | violates his rights. ECF No. 1 at 12-13. Whether he should be granted parole is a separate 13 || question from whether his original conviction violates his rights. The two issues cannot be 14 | pursued in the same petition. 15 It is ORDERED that: 16 1. Petitioner’s application to proceed in forma pauperis, ECF No. 2, is granted. 17 2. Petitioner may file an amended petition within sixty days of this order’s entry. If 18 | he does not, I will recommend that the current petition be dismissed for the reasons stated in this 19 | order. 20 3. The Clerk of Court is directed to send petitioner a federal habeas form. [21] IT IS SO ORDERED. 23 ( 1 Oy — Dated: _ October 13, 2021 Q_-——_ 24 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE