(HC) Washington v. Shirley

[8] UNITED STATES DISTRICT COURT [9] EASTERN DISTRICT OF CALIFORNIA [10] 11 DARRIEN WASHINGTON, Case No. 1:21-cv-01504-JLT-SAB-HC 12 Petitioner, FINDINGS AND RECOMMENDATION TO GRANT RESPONDENT’S MOTION TO 13 v. DISMISS AND DISMISS WITHOUT PREJUDICE PETITION FOR WRIT OF 14 HEATHER SHIRLEY,1 HABEAS CORPUS 15 Respondent. (ECF No. 10) 16 ORDER DIRECTING CLERK OF COURT TO SUBSTITUTE RESPONDENT [17] 18 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254 . 20 I. 21 BACKGROUND 22 On November 21, 2017, Petitioner was convicted after a jury trial in the Kings County 23 Superior Court of attempted murder, assault with a firearm, shooting at an occupied vehicle, 24 active participation in a street gang, and being an ex-felon in possession of a firearm. The jury 25 found true enhancements that the offenses were committed for the benefit of or in association 26 with a criminal street gang and involved the personal use of a firearm causing great bodily [27] 1 Heather Shirley is the Warden of Wasco State Prison, where Petitioner is housed. Accordingly, Heather Shirley is 1 injury. Petitioner admitted to a prior serious felony conviction that was also a strike. Petitioner 2 was sentenced to an imprisonment term of 206 years to life. (LDs2 1, 2). On October 29, 2020, 3 the California Court of Appeal, Fifth Appellate District remanded the matter back to the trial 4 court for a determination whether Petitioner should be resentenced in light of Senate Bill No. 5 1393 and Senate Bill No. 620. The judgment was otherwise affirmed. (LD 2). On January 20, 6 2021, the California Supreme Court denied Petitioner’s petition for review. (LDs 3, 4). 7 On October 12, 2021, Petitioner filed the instant federal petition for writ of habeas 8 corpus. (ECF No. 1). On December 9, 2021, Respondent filed a motion to dismiss the petition 9 pursuant to Younger v. Harris, 401 U.S. 37 (1971), based on Petitioner’s ongoing state remand 10 proceedings. (ECF No. 10). Petitioner has not filed an opposition or statement of non-opposition, 11 and the time for doing so has passed. 12 II. 13 DISCUSSION 14 “Younger abstention is a jurisprudential doctrine rooted in overlapping principles of 15 equity, comity, and federalism.” San Jose Silicon Valley Chamber of Commerce Political Action 16 Comm. v. City of San Jose, 546 F.3d 1087, 1091 (9th Cir. 2008). In Younger, the Supreme Court 17 held that when there is a pending state criminal proceeding, federal courts must refrain from 18 enjoining the state prosecution. Younger, 401 U.S. at 41 ; Sprint Commc’ns, Inc. v. Jacobs, 571 19 U.S. 69, 72 (2013). See also Kowalski v. Tesmer, 543 U.S. 125, 133 (2004) (“The doctrine of 20 Younger v. Harris . . . reinforces our federal scheme by preventing a state criminal defendant 21 from asserting ancillary challenges to ongoing state criminal procedures in federal court.”). 22 “However, even if Younger abstention is appropriate, federal courts do not invoke it if there is a 23 ‘showing of bad faith, harassment, or some other extraordinary circumstance that would make 24 abstention inappropriate.’” Arevalo v. Hennessy, 882 F.3d 763 , 765–66 (9th Cir. 2018) (quoting 25 Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 435 (1982)). 26 /// 27 /// 1 Here, Petitioner currently is awaiting a remand hearing in the Kings County Superior 2 Court.3 (ECF No. 10 at 2; ECF No. 10-1 at 2). The Ninth Circuit has held that “[w]hen there is a 3 pending state penalty retrial and no unusual circumstances, we decline to depart from the general 4 rule that a petitioner must await the outcome of the state proceedings before commencing his 5 federal habeas corpus action.” Edelbacher v. Calderon, 160 F.3d 582 , 582–83 (9th Cir. 1998). 6 Accordingly, as Petitioner has an ongoing criminal proceeding in state court, the Court should 7 abstain from interfering with the state judicial process pursuant to Younger, and the petition 8 should be dismissed without prejudice. 9 III. 10 RECOMMENDATION & ORDER 11 Based on the foregoing, the undersigned HEREBY RECOMMENDS that Respondent’s 12 motion to dismiss (ECF No. 10) be GRANTED and the petition be DISMISSED without 13 prejudice. 14 Further, the Clerk of Court is DIRECTED to SUBSTITUTE Heather Shirley as 15 Respondent in this matter. 16 This Findings and Recommendation is submitted to the assigned United States District 17 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 18 Rules of Practice for the United States District Court, Eastern District of California. Within 19 THIRTY (30) days after service of the Findings and Recommendation, any party may file 20 written objections with the court and serve a copy on all parties. Such a document should be 21 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the 22 objections shall be served and filed within fourteen (14) days after service of the objections. The 23 assigned District Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. [24] 3 Superior Court of California, County of Kings, https://cakingsportal.tylerhost.net/CAKINGSPROD (search by 25 “Record Number” for “17CMS0951B”) (last visited Feb. 3, 2022). See Fed. R. Evid. 201(b)(2); U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (A court “may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct [26] relation to matters at issue.” (internal quotation marks and citation omitted)); United States v. Raygoza-Garcia, 902 F.3d 994, 1001 (9th Cir. 2018) (“A court may take judicial notice of undisputed matters of public record, which may 27 include court records available through PACER.”); Arizona Libertarian Party v. Reagan, 798 F.3d 723 , 727 n.3 (9th Cir. 2015) (“We may take judicial notice of ‘official information posted on a governmental website, the accuracy of 1 | 636(b)(1)(C). The parties are advised that failure to file objections within the specified time 2 | may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 834 , 3 | 839 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). [4] 5 IT IS SO ORDERED. FA. ee 6 | Dated: _ February 4, 2022 UNITED STATES MAGISTRATE JUDGE