Hawkins v. Gore

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] Case No.: 21-cv-00500-BAS-JLB 11 CHRISTOPHER HAWKINS, 12 Petitioner, ORDER: 13 v. (1) DECLINING TO REVIEW DECISION BY CALIFORNIA SUPREME 14 GORE, et al., COURT; 15 Respondents. (2) DIRECTING CLERK TO ENTER JUDGMENT IN ACCORDANCE 16 WITH COURT’S MARCH 25, 2021 ORDER; [17] AND [18] (3) DECLINING TO ISSUE 19 CERTIFICATE OF APPEALABILITY [20] 21 On March 19, 2021, Petitioner Christopher Hawkins, who is currently detained at 22 the San Diego County Jail and is proceeding pro se, filed a Petition for a Writ of Habeas 23 Corpus pursuant to 28 U.S.C. § 2254 (“Petition”). (ECF No. 1.) On March 25, 2021, the 24 Court dismissed the instant habeas action for failure to satisfy the filing fee requirement 25 and because the Court must abstain from interference in Petitioner’s ongoing criminal 26 proceedings pursuant to Younger v. Harris, 401 U.S. 37 (1971). (ECF No. 2.) 27 On May 18, 2021, nunc pro tunc to May 12, 2021, Petitioner filed a document in 28 this Court entitled “Notice of Appeal,” directed to “The Southern District Court of the State 1 of California County of San Diego,” listing the case number as “CD-288450” and 2 indicating the appeal was “from the dismissal of the above action on 4-26-21 regarding 3 D078524 affecting the substantial rights of the defendant P.C. 1237 and regarding the slow 4 processing of mail on behalf of the facility during a global pandemic crisis.” (ECF No. 4 5 at 1.) Petitioner also attaches a copy of a letter from the California Supreme Court to him 6 dated April 26, 2021, returning unfiled Petitioner’s petition for review received that same 7 day for lack of jurisdiction, indicating the state appellate court docket reflected a dismissal 8 order was issued February 5, 2021 and the state supreme court “lost jurisdiction to act on 9 any petition for review after April 6, 2021.” (Id. at 2, citing Cal. Rule of Court 8500(e).) 10 As an initial matter, it is unclear whether Petitioner seeks action from this Court 11 rather than from the state supreme and/or superior courts, and if so, what action Petitioner 12 seeks from this Court. However, to the extent Petitioner seeks review of the California 13 Supreme Court’s April 26, 2021 letter returning Petitioner’s petition for review without 14 filing it by this Court, the Court DENIES this request. Instead, the Court must continue to 15 abstain given Petitioner’s ongoing state criminal proceedings, as outlined in the Court’s 16 March 25, 2021 Order dismissing the case without prejudice. (See ECF No. 2 at 2–3.) 17 To the extent Petitioner seeks to appeal to the Ninth Circuit this Court’s March 25, 18 2021 Order dismissing the case for failure to satisfy the filing fee requirement and 19 abstention, such action is currently premature because the Court has not yet entered 20 judgment in the instant case, but such a request is valid given all that remains is to enter 21 judgment. See In re Jack Raley Constr., Inc., 17 F.3d 291, 294 (9th Cir. 1994) (quoting 22 American Totalisator Co. v. Fair Grounds Corp., 3 F.3d 810, 813 (5th Cir. 1993)) (“A 23 premature notice of appeal is valid when ‘(a)ll that remained was the clerk’s ministerial 24 task of entering a Rule 58 judgment.’”). Upon review, the Court finds entry of judgment 25 is appropriate because as previously stated, the Court must abstain in view of the ongoing 26 state criminal proceedings. (See id. at 2–3.) Accordingly, the Court DIRECTS the Clerk 27 to enter judgment dismissing this case without prejudice in accordance with the Court’s 28 March 25, 2021 Order. 1 Even with judgment entered, a petitioner may not appeal “the final order in a habeas 2 corpus proceeding in which the detention complained of arises out of process issued by a 3 State court” except where “a circuit justice or judge issues a certificate of appealability 4 [(“COA”)].” 28 U.S.C. § 2253 (c)(1)(A). “A certificate of appealability may issue . . . only 5 if the applicant has made a substantial showing of the denial of a constitutional right.” 28 6 U.S.C. § 2253 (c)(2). The Supreme Court has further explained: 7 When the district court denies a habeas petition on procedural grounds without 8 reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable [9] whether the petition states a valid claim of the denial of a constitutional right 10 and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. [11] 12 Slack v. McDaniel, 529 U.S. 473, 484 (2000). In this instance, it is evident the Court’s 13 March 25, 2021 Order was procedural in nature because the Court concluded it was barred 14 from considering Petitioner’s constitutional claims and dismissed the Petition prior to 15 substantive review of those claims for failing to satisfy the filing fee requirement and due 16 to abstention. (See ECF No. 2.) 17 Upon review of the standard outlined in Slack, the Court concludes a certificate of 18 appealability is not warranted because neither would reasonable jurists find it debatable 19 whether the Petition states a valid claim of the denial of a constitutional right, nor would 20 reasonable jurists find debatable the correctness of the Court’s procedural rulings 21 concerning Petitioner’s failure to satisfy the filing fee requirement and Younger abstention. 22 See Slack, 529 U.S. at 484 ; see also 28 U.S.C. § 2253 (c). Accordingly, the Court 23 DECLINES to issue a COA from its order of dismissal. 24 CONCLUSION AND ORDER 25 For the reasons discussed above, to the extent Petitioner requests in the recently filed 26 Notice of Appeal from Dismissal that the Court review the state supreme court’s April 26, 27 2021 ruling, this Court DENIES this request because the Court must continue to abstain 28 from interference in the ongoing state criminal proceedings pursuant to Younger. 1 To the extent Petitioner seeks to appeal to the Ninth Circuit, the Court: (1) 2 ||DIRECTS the Clerk to enter judgment dismissing this case without prejudice in 3 ||accordance with the Court’s March 25, 2021 Order; and (2) DECLINES to issue a 4 certificate of appealability from its March 25, 2021 Order dismissing the case without 5 || prejudice. 6 IT IS SO ORDERED. [7] 8 || DATED: June 1, 2021 Cypillg | Aiphaak 9 United States District Judge