Edward Eugene Banks v. Josie Gastelo

Filing 7

MINUTE (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 April 22, 2021 why the instant Petition should not bedismissed. (see document for further details) (hr)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.: 2:20-11347 CAS (ADS)

Date: April 1, 2021

Title: Edward Eugene Banks v. Josie Gastelo

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 Edward Eugene Banks (“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 April 22, 2021 why the instant Petition should not be
dismissed.

Based on Plaintiff’s filing fee payment, the February 22, 2021 Order to Show Cause
Re: Dismissal [Dkt. No. 5] is hereby discharged.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.: 2:20-11347 CAS (ADS)

Date: April 1, 2021

Title: Edward Eugene Banks v. Josie Gastelo
II.

PENDING STATE APPEAL MAY REQUIRE DISMISSAL OF PETITION
A.

Background

The instant federal habeas Petition indicates that Petitioner filed an appeal that is
currently pending before the California Court of Appeal, Second Appellate District.
[Dkt. No. 1, p. 18].2 That appeal is not yet complete as no decision has been issued to
date. California Appellate Courts Case Information, 2nd Appellate District, Case No.
B306135, https://appellatecases.courtinfo.ca.gov.
B.

Pending State Appeal

The instant federal 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

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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.: 2:20-11347 CAS (ADS)

Date: April 1, 2021

Title: Edward Eugene Banks v. Josie Gastelo
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 petition pending before the California Court of
Appeal. It appears the state proceedings are ongoing, as no decision has been made in
that case. California Appellate Courts Case Information, 2nd Appellate District, Case
No. B306135, https://appellatecases.courtinfo.ca.gov. The Court will need additional
information to determine whether Younger abstention is appropriate in this case.
III.

CONCLUSION

Petitioner is ORDERED TO SHOW CAUSE in writing by April 22, 2021
why the Court should not dismiss this action without prejudice under Younger and
Sherwood.
In the alternative, Petitioner may request a voluntary dismissal of this action
without prejudice pursuant to Federal Rule of Civil Procedure 41(a). Petitioner is
advised that any dismissed claims may be later subject to the statute of limitations
under 28 U.S.C. 2244(d)(1).
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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