Jesse Candelario Galvan v. Raymond Madden

Filing 47

(IN CHAMBERS) ORDER TO SHOW CAUSE WHY THE PETITION SHOULD NOT BE DISMISSED DUE TO PENDING STATE APPEAL by Magistrate Judge Autumn D. Spaeth. Petitioner is ORDERED TO SHOW CAUSE in writing by May 11, 2020 why the Court should not dismiss this action without prejudice under Younger and Sherwood. Petitioner must also provide a copy of his opening brief in case number B300323 with the California Court of Appeal. (see document for further details) (hr)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.: 2:17-04300 JLS (ADS)

Date:

April 20, 2020

Title: Jesse Candelario Galvan v. Kathleen Allison and Stuart Sherman

Present: The Honorable Autumn D. Spaeth, United States Magistrate Judge
Kristee Hopkins
Deputy Clerk

None Reported
Court Reporter / Recorder

Attorney(s) Present for Petitioner(s):
None Present

Attorney(s) Present for Respondent(s):
None Present

Proceedings:

I.

(IN CHAMBERS) ORDER TO SHOW CAUSE WHY THE
PETITION SHOULD NOT BE DISMISSED DUE TO
PENDING STATE APPEAL

INTRODUCTION

Pending before the Court is a Petition for Writ of Habeas Corpus by a Person in
State Custody (“Petition”), filed by Petitioner Jesse Candelario Galvan (“Petitioner”), a
California state prisoner. [Dkt. No. 1].1 The Court’s review reveals that the Petition is
subject to dismissal because an appeal is currently pending before the California Court
of Appeal which may moot the instant federal Petition. The Court will not make a final
determination regarding whether the federal Petition should be dismissed, however,
without giving Petitioner an opportunity to address this issue. For the reasons
discussed below, Petitioner is ORDERED TO SHOW CAUSE in writing by May 11,
2020 why the instant Petition should not be dismissed.
II.

RELEVANT BACKGROUND

On March 29, 2019, Petitioner, through counsel, filed a petition to vacate his
conviction and for resentencing in Los Angeles County Superior Court, pursuant to
California Penal Code § 1170.95(a). [Dkt. No. 45-15, LD 15]. On July 16, 2019, the
Superior Court denied the petition. [Dkt. No. 45-17, LD 17].
1

All citations to electronically-filed documents refer to the CM/ECF pagination.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.: 2:17-04300 JLS (ADS)

Date:

April 20, 2020

Title: Jesse Candelario Galvan v. Kathleen Allison and Stuart Sherman
On August 1, 2019, Petitioner, through counsel, filed a notice of appeal with the
California Court of Appeal, Second Appellate District, appealing the Superior Court’s
denial of the petition for resentencing. [Dkt. No. 45-18, LD 18]. To date, that appeal is
still pending and briefing has not been completed. See California Appellate Courts Case
Information, 2nd Appellate District, http://appellatecases.courtinfo.ca.gov (Case No.
B300323).
III.

PENDING STATE APPEAL MAY REQUIRE DISMISSAL OF PETITION

The instant Petition may be subject to dismissal due to Petitioner’s pending state
appeal. A pending state appeal renders a federal habeas petition subject to dismissal
even if the claim raised in the federal petition is different from the issue raised in a
pending state appeal. See Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983)
(“When . . . an appeal of a state criminal conviction is pending, a would-be habeas
corpus petitioner must await the outcome of his appeal before his state remedies are
exhausted, even where the issue to be challenged . . . has been finally settled in the state
courts.”). This is because, “even if the federal constitutional question raised by the
habeas corpus petitioner cannot be resolved in a pending state appeal, that appeal may
result in the reversal of the petitioner’s conviction on some other ground, thereby
mooting the federal question.” Id. at 634 (internal citation omitted).
A federal court will not intervene in a pending state criminal proceeding absent
extraordinary circumstances involving great and immediate danger of irreparable harm.
See Younger v. Harris, 401 U.S. 37, 45-46 (1971). Younger abstention is appropriate if
the following three criteria are met: (1) the state proceedings are ongoing; (2) the
proceedings implicate important state interests; and (3) the state proceedings provide
an adequate opportunity to litigate federal constitutional claims. See Middlesex Cnty.
Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982). When Younger
abstention is appropriate, the court must dismiss the action without prejudice. Beltran
v. California, 871 F.2d 777, 782 (9th Cir. 1988) (as amended Mar. 30, 1989).
Here, Petitioner has a state appeal pending before the California Court of Appeal.
[Dkt. No. 43, pp. 16, 18]. It appears the state proceedings are ongoing, as briefing is not

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.: 2:17-04300 JLS (ADS)

Date:

April 20, 2020

Title: Jesse Candelario Galvan v. Kathleen Allison and Stuart Sherman
yet complete. California Appellate Courts Case Information, 2nd Appellate District,
http://appellatecases.courtinfo.ca.gov (Case No. B300323). The Court will need
additional information to determine whether Younger abstention is appropriate in this
case.
IV.

CONCLUSION

Petitioner is ORDERED TO SHOW CAUSE in writing by May 11, 2020 why
the Court should not dismiss this action without prejudice under Younger and
Sherwood. Petitioner must also provide a copy of his opening brief in case number
B300323 with the California Court of Appeal.
Petitioner is expressly warned that his failure to timely comply with
this Order may result in the Court issuing an order dismissing for the
reasons stated above, failure to prosecute, and/or failure to obey Court
orders pursuant to Federal Rule of Civil Procedure 41(b).
IT IS SO ORDERED.

Initials of Clerk kh

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