David James Lack v. Bill Brown

Filing 3

MEMORANDUM AND ORDER DISMISSING PETITION WITHOUT PREJUDICE by Judge Beverly Reid O'Connell re Petition for Writ of Habeas Corpus (2254) 1 . Accordingly, the petition is dismissed without prejudice to its refiling after petitioners criminal proceedings, including any direct appeal, are completed. See Carden v. Montana, 626 F.2d 82, 84-85 (9th Cir.) (rejecting a claim that the petitioners would be irreparably harmed by waiting until after state trial to assert their speedy trial claim), cert. denied, 449 U.S. 1014 (1980). (See attached order for further details.) (jsan)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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DAVID JAMES LACK,
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Petitioner,
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v.
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SHERIFF BILL BROWN,
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Respondent.
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_________________________________)

Case No. CV 17-26-BRO(AJW)
MEMORANDUM AND ORDER
DISMISSING PETITION
WITHOUT PREJUDICE

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On January 3, 2017, petitioner filed this petition for a writ of
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habeas corpus. The petition challenges criminal proceedings in the
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Santa

Barbara

Superior

Court

that

have

not

yet

been

completed.

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Specifically, petitioner alleges that he has been deprived of his right
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to a speedy trial and seeks an order dismissing the charges against
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him. [Petition at 2-9]. For the following reasons, the petition is
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subject to summary dismissal.1

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Federal

intrusion

into

petitioner’s

ongoing

state

criminal

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proceedings is precluded by Younger v. Harris, 401 U.S. 37 (1971).
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“[O]nly in the most unusual circumstances is a defendant entitled to
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1

Rule 4 of the Rules Governing Section cases requires a judge
promptly to examine a federal habeas corpus petition, and to dismiss it
if “it plainly appears from the petition and any attached exhibits that
the petitioner is not entitled to relief in the district court....”

1 have federal interposition by way of injunction or habeas corpus until
2 after the jury comes in, judgment has been appealed from and the case
3 concluded in the state courts.” Drury v. Cox, 457 F.2d 764, 764-765
4 (9th Cir. 1972) (per curiam). Although Younger abstention may not be
5 warranted if a prosecution is “undertaken by state officials without
6 hope of obtaining a valid conviction” or if a challenged criminal
7 statute is “flagrantly and patently violative of express constitutional
8 prohibitions”, Perez v. Ledesma, 401 U.S. 82, 85 (1971), petitioner has
9 not made such a showing. See Brown v. Ahern, 676 F.3d 899, 900, 903
10 (9th

Cir.

2012)(“[A]bsent

specifically

defined

extraordinary

11 circumstances, principles of federalism and comity prohibit a federal
12 district court from entertaining a pre-conviction habeas petition that
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a

Speedy

Trial

claim

as

an

affirmative

defense

to

state

14 prosecution.”).2
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Accordingly, the petition is dismissed without prejudice to its

16 refiling after petitioner’s criminal proceedings, including any direct
17 appeal, are completed. See Carden v. Montana, 626 F.2d 82, 84-85 (9th
18 Cir.) (rejecting a claim that the petitioners would be irreparably
19 harmed by waiting until after state trial to assert their speedy trial
20 claim), cert. denied, 449 U.S. 1014 (1980).
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It is so ordered.

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Dated: January 11, 2017
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Beverly Reid O’Connell
United States District Judge

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The policy underlying Younger abstention is sufficiently important
that federal courts may raise the issue sua sponte. See Hoye v. City of
Oakland, 653 F.3d 835, 843 n. 5 (9th Cir. 2011).

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