Nash v. Unknown

Filing 17

FINDINGS and RECOMMENDATIONS to Grant Respondent's 16 Motion to Dismiss Premature Petition, signed by Magistrate Judge Jennifer L. Thurston on 9/8/17. Objections to F&R Due Within Ten Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANGELIQUE NASH,

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Petitioner,

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v.

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No. 1:17-cv-00238-AWI-JLT (HC)
FINDINGS AND RECOMMENDATION
TO GRANT RESPONDENT’S MOTION
TO DISMISS PREMATURE PETITION
[Doc. 16]

D. G. ADAMS,
[TEN DAY OBJECTION DEADLINE]

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Respondent.

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Petitioner filed a habeas petition on February 17, 2017, challenging her 2013 conviction in

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Kern County Superior Court of first degree murder with special circumstances. Pending before

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the Court is Respondent’s motion to dismiss the petition as premature, filed May 5, 2017. (Doc.

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16.) Petitioner did not file an opposition. The Court agrees with Respondent and will

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recommend the motion be GRANTED.
DISCUSSION

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A.

Preliminary Review of Petition
Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a

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petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not

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entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases.

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The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of

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habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to
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dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir.

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2001).

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B.

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State Procedural Background
On October 11, 2013, Petitioner was found guilty by jury trial in the Kern County

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Superior Court of first degree murder with the special circumstance of the murder having been

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committed during a burglary. (Doc. 10 at 1.1) She was sentenced to a term of 25 years-to-life.

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(Doc. 10 at 1.)

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On July 1, 2015, the California Court of Appeal, Fifth Appellate District (hereinafter
“Fifth DCA”) affirmed judgment. (Doc. 16 at 14.) Petitioner filed a petition for review in the

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California Supreme Court. On August 17, 2016, the California Supreme Court vacated the Fifth

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DCA’s decision and remanded the matter in light of People v. Franklin, 63 Cal.4th 261, 269

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(2016), and People v. Banks, 61 Cal.4th 788 (2015). (Doc. 16 at 15.) Pursuant to the California

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Supreme Court’s order, on September 19, 2016, the Fifth DCA vacated its July 1, 2015, opinion.

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(Doc. 16 at 15.)

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On November 14, 2016, the Fifth DCA reversed the true finding on the special

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circumstance and remanded the matter to the trial court for preparation of a new abstract of

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judgment. (Doc. 16 at 16.) The matter was also remanded to the trial court for the limited

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purpose of determining whether Petitioner was afforded sufficient opportunity to make a record

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of information relevant to her eventual youth offender parole hearings, and if not, to afford her

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that opportunity. (Doc. 16 at 16.)

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Petitioner petitioned for review again to the California Supreme Court. On February 16,

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2017, the petition for review was granted and the matter was referred back to the Fifth DCA with

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directions to vacate its decision, grant rehearing, and reconsider the cause in light of Proposition

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57. (Doc. 16 at 17.) Thereafter, supplemental briefing was requested. On March 29, 2017,

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Respondent filed a supplemental brief. (Doc. 16 at 18.) Petitioner filed a supplemental brief on

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February 22, 2017, and supplemental points and authorities on May 2, 2017. (Doc. 16 at 18.)

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Page references are to ECF pagination.

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The matter is currently pending in the Fifth DCA.

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C.

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Younger Abstention
Under principles of comity and federalism, a federal court should not interfere with

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ongoing state criminal proceedings by granting injunctive or declaratory relief except under

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special circumstances. Younger v. Harris, 401 U.S. 37, 43-54 (1971). Younger abstention is

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required when: (1) state proceedings, judicial in nature, are pending; (2) the state proceedings

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involve important state interests; and (3) the state proceedings afford adequate opportunity to

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raise the constitutional issue. Middlesex County Ethics Comm. V. Garden State Bar Ass’n, 457

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U.S. 423, 432 (1982); Dubinka v. Judges of the Superior Court, 23 F.3d 218, 223 (9th Cir. 1994).

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The rationale of Younger applies throughout the appellate proceedings, requiring that state

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appellate review of a state court judgment be exhausted before federal court intervention is

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permitted. Dubinka, 23 F.3d at 223 (even if criminal trials were completed at time of abstention

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decision, state court proceedings still considered pending).

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The law of habeas corpus also provides guidance on when a district court should abstain

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from review of a claim. In order to be granted federal habeas corpus relief, the petition must have

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exhausted her available state remedies. 28 U.S.C. § 2254(b). The rule of exhaustion is based on

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comity to the state court and gives the state court the initial opportunity to correct the state's

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alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991). The

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exhaustion requirement can be satisfied by providing the highest state court with a full and fair

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opportunity to consider each claim before presenting it to the federal court. Picard v. Connor, 404

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U.S. 270, 276 (1971)

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In the instant case, state proceedings are ongoing and currently pending a resolution by the

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state appellate court. A final judgment has not been rendered in the matter. In addition,

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California has an important interest in passing upon and correcting violations of a defendant’s

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rights. Roberts v. Dicarlo, 296 F.Supp.2d 1182, 1185 (C.D. Cal. 2002) (citing Koerner v. Grigas,

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328 F.3d 1039, 1046 (9th Cir. 2003)). Finally, the California Court of Appeal and the California

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Supreme Court are adequate forums for Petitioner to seek relief for her claims. Roberts, 296

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F.Supp.2d at 1185. Therefore, the Court recommends Respondent’s motion be granted and the
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Court abstain from interfering in state proceedings pursuant to Younger.

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RECOMMENDATION

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Accordingly, the Court RECOMMENDS that Respondent’s motion to dismiss be

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GRANTED, and the petition be DISMISSED WITHOUT PREJUDICE as premature.
This Findings and Recommendation is submitted to the United States District Court Judge

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assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304

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of the Local Rules of Practice for the United States District Court, Eastern District of California.

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Within ten days after being served with a copy, any party may file written objections with the

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Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendation.” Any reply to objections may be filed within seven days of the date of service

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of objections. The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. §

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636 (b)(1)(C). Failure to file objections within the specified time may waive the right to appeal

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the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

September 8, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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