(HC)Tellez v. Matteson

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 ELPIDIO D. TELLEZ, No. 2:22-cv-0404 CKD P 12 Petitioner, 13 v. ORDER AND 14 GIGI MATTESON, Warden, FINDINGS AND RECOMMENDATIONS 15 Respondent. [16] 17 Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254 . Petitioner paid the filing fee. 19 Under Rule 4 of the Rules Governing Section 2254 Cases, the court must review all 20 petitions for writ of habeas corpus and summarily dismiss any petition if it is plain that the 21 petitioner is not entitled to relief. The court has conducted that review. 22 The exhaustion of state court remedies is a prerequisite to the granting of a petition for 23 writ of habeas corpus. 28 U.S.C. § 2254 (b)(1). A petitioner satisfies the exhaustion requirement 24 by providing the highest state court with a full and fair opportunity to consider all claims before 25 presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971). 26 After reviewing the petition for writ of habeas corpus, the dockets of cases filed by 27 petitioner in the California Supreme Court (S263709) and in the California Court of Appeal, 28 Third Appellate District (C077915, C089819, C091737), it does not appear that petitioner has 1 presented the claims presented in this action to the California Supreme Court. Further, there is no 2 allegation that state court remedies are no longer available to petitioner. Accordingly, the petition 3 for writ of habeas corpus should be dismissed.1 4 Also, after reviewing the dockets of the cases mentioned above, it does not appear that 5 judgment is final with respect to the convictions and sentences challenged and that petitioner’s 6 sentence is currently under review in California Court of Appeal case number C089819. 7 Generally speaking, federal courts cannot interfere with pending state criminal proceedings, 8 absent extraordinary circumstances which create a threat of irreparable injury. Younger v. Harris, [9] 401 U.S. 37, 45-46 (1971). Irreparable injury does not exist in such situations if the threat to 10 plaintiff’s federally protected rights may be eliminated by his defense of the criminal case. 11 Moreover, “even irreparable injury is insufficient [to permit interference with the proceeding] 12 unless it is ‘both great and immediate.’” Id. at 46 (quoting Fenner v. Boykin, 271 U.S. 240 , 24313 44 (1926)). 14 “The Younger doctrine was borne of the concern that federal court injunctions might 15 unduly hamper a state in its prosecution of criminal laws.” Miofsky v. Superior Court, 703 F.2d 16 332, 336 (9th Cir. 1983). In practical terms, the Younger doctrine means that “‘only in the most 17 unusual circumstances is a defendant entitled to have federal interposition by way of injunction or 18 habeas corpus until after the jury comes in, judgment has been appealed from and the case 19 concluded in the state courts.’” Carden v. Montana, 626 F.2d 82, 83-84 (9th Cir.) (quoting Drury 20 v. Cox, 457 F.2d 764, 764-65 (9th Cir. 1972)), cert. denied, 449 U.S. 1014 (1980). 21 Nothing before the court suggests there are the extraordinary circumstances creating the 22 threat of irreparable injury necessary for this court to proceed with petitioner’s claims at this 23 point. 24 For these reasons, the court will recommend that petitioner’s petition for writ of habeas 25 1 Petitioner is cautioned that the habeas corpus statute imposes a one-year statute of limitations for filing non-capital habeas corpus petitions in federal court. In most cases, the one-year period [26] will start to run on the date on which the state court judgment became final by the conclusion of 27 direct review or the expiration of time for seeking direct review, although the statute of limitations is tolled while a properly filed application for state post-conviction or other collateral 28 review is pending. 28 U.S.C. § 2244 (d). 1 | corpus be summarily dismissed. 2 Accordingly, IT IS HERBY ORDERED that the Clerk of the Court assign a district court 3 || judge to this case. 4 IT IS HEREBY RECOMMENDED that: 5 1. Petitioner’s petition for writ of habeas corpus be summarily dismissed; and 6 2. This case be closed. 7 These findings and recommendations are submitted to the United States District Judge 8 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(I). Within fourteen days 9 || after being served with these findings and recommendations, petitioner may file written 10 || objections with the court. Such a document should be captioned “Objections to Magistrate 11 || Judge’s Findings and Recommendations.” In his objections petitioner may address whether a 12 | certificate of appealability should issue in the event he files an appeal of the judgment in this 13 || case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or 14 | deny a certificate of appealability when it enters a final order adverse to the applicant). Where, as 15 || here, a habeas petition is dismissed on procedural grounds, a certificate of appealability “should 16 || issue if the prisoner can show: (1) ‘that jurists of reason would find it debatable whether the 17 || district court was correct in its procedural ruling;’ and (2) ‘that jurists of reason would find it 18 || debatable whether the petition states a valid claim of the denial of a constitutional right.’” Morris 19 | v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473 , 484 20 | (2000)). Petitioner is advised that failure to file objections within the specified time may waive 21 | the nght to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 22 | Dated: May 10, 2022 / □□ I / dle ae 8 CAROLYNK. DELANEY 24 UNITED STATES MAGISTRATE JUDGE [26] 27 || Imp tell0404.100fee