(HC) Grayson v. California Department of Corrections

Filing 6

ORDER DIRECTING Clerk of Court to Assign District Judge; FINDINGS and RECOMMENDATIONS to Summarily Dismiss Premature Petition, signed by Magistrate Judge Sheila K. Oberto on 5/8/2024. Objections to F&R due within TWENTY-ONE 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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ERICK DONTAY GRAYSON,

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Petitioner,

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ORDER DIRECTING CLERK OF COURT
TO ASSIGN DISTRICT JUDGE

v.

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No. 1:24-cv-00534-SKO (HC)

CALIFORNIA DEPARTMENT OF
CORRECTIONS,

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Respondent.

FINDINGS AND RECOMMENDATION
TO SUMMARILY DISMISS PREMATURE
PETITION
[TWENTY-ONE DAY OBJECTION
DEADLINE]

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Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for

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writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner filed the instant habeas petition on

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May 6, 2024, challenging his 2020 conviction in Kern County Superior Court of forcible rape and

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kidnapping. Because the petition is premature, the Court will recommend it be DISMISSED.
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.

Premature Petition

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Petitioner was convicted in the Kern County Superior Court on July 16, 2020, of forcible

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rape and kidnapping. (Doc. 1 at 1.) He appealed to the California Court of Appeals and then to

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the California Supreme Court. (Doc. 1 at 2.) On March 22, 2023, the California Supreme Court

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granted the petition and remanded the case to the trial court for resentencing. (Doc. 1 at 2.) After

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Petitioner was resentenced in the trial court, he filed an appeal challenging the resentencing.

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(Doc. 1 at 12.) Petitioner states the appeal is currently pending. (Doc. 1 at 12.)

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It is premature for this court to review Petitioner’s collateral attack on his conviction

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because direct review is still ongoing and there is no final judgment. A federal court’s jurisdiction

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to review the merits of a habeas petition commences, in pertinent part, on “the date on which the

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judgment became final by the conclusion of direct review.” 28 U.S.C. § 2244(d)(1)(A).

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Under Younger v. Harris, 401 U.S. 37 (1971), federal courts may not enjoin pending state

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criminal proceedings except under extraordinary circumstances. Id. at 49, 53. Younger abstention

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prevents a court from exercising jurisdiction when three criteria are met: 1) there are ongoing

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state judicial proceedings; 2) an important state interest is involved; and 3) there is an adequate

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opportunity to raise the federal question at issue in the state proceedings. H.C. ex rel. Gordon v.

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Koppel, 203 F.3d 610, 613 (9th Cir. 2000).

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The Younger criteria are satisfied here. First, the appeal of Petitioner’s resentencing is still

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pending. Notwithstanding the fact that Petitioner’s appeal concerns resentencing, the judgment is

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not final. The Supreme Court has stated: “‘Final judgment in a criminal case means sentence. The

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sentence is the judgment.’” Burton v. Stewart, 549 U.S. 147, 156 (2007) (quoting Berman v.

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United States, 302 U.S. 211, 212 (1937)). Second, resentencing proceedings implicate an

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important state interest in enforcing criminal laws without federal interference. See Kelly v.

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Robinson, 479 U.S. 36, 49 (1986) (“[T]he States’ interest in administering their criminal justice

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systems free from federal interference is one of the most powerful of the considerations that

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should influence a court considering equitable types of relief”) (citing Younger, 401 U.S. at 442

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45). Finally, the California state courts provide an adequate forum in which Petitioner may pursue

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his claims. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15 (1987) (“[A] federal court should

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assume that state procedures will afford an adequate remedy, in the absence of unambiguous

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authority to the contrary.”). When the state proceedings have fully concluded and his conviction

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becomes final, Petitioner may seek federal habeas relief. See, e.g., Fellows v. Matteson, 2020 WL

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4805022 (C.D. Cal. May 18, 2020) (prisoner “may seek federal habeas relief after his California

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state criminal proceedings, including his pending SB 620 motion in the California Court of

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Appeal, have concluded with a final judgment of conviction.”). For these reasons, the Court does

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not find that extraordinary circumstances warrant intervention.
The Court also notes that “courts in the Ninth Circuit have abstained under Younger when

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a habeas petitioner's state resentencing appeal is pending.” Duke v. Gastelo, 2020 WL 4341595,

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at *4 (C.D. Cal. June 24, 2020), adopted, 2020 WL 4339889 (C.D. Cal. July 28, 2020); Vanhook

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v. Burton, 2020 WL 5203439 (E.D. Cal. Sept. 1, 2020) (recommending denial of motion for stay

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and dismissal of federal habeas petition due to pending state appeal for resentencing); adopted,

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2020 WL 5943013 (E.D. Cal. Oct. 7, 2020); Sauceda v. Sherman, 2020 WL 2510639, at *4 (C.D.

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Cal. Feb. 7, 2020) (recommending dismissal of a federal habeas petition due to pending state

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appeal for resentencing under Cal. P.C. § 1170.95), adopted, 2020 WL 1433678 (C.D. Cal. March

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22, 2020); Phillips v. Neuschmid, 2019 WL 6312573, at *3 (C.D. Cal. Oct. 18, 2019) (“courts

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implicitly find that granting federal habeas corpus relief would have the practical effect of

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enjoining or interfering with the ongoing state judicial proceeding, even where the state

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proceeding is limited to sentencing;” recommending dismissal of habeas petition due to pending

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state appeal for resentencing); adopted, 2019 WL 6310269 (C.D. Cal. Nov. 22, 2019) (collecting

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cases).

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Based on the foregoing, the Court recommends that this action be dismissed without
prejudice as premature and barred by Younger.

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ORDER
IT IS HEREBY ORDERED that the Clerk of Court is DIRECTED to assign a District
Judge to the case.
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RECOMMENDATION

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Based on the foregoing, the Court HEREBY RECOMMENDS that the habeas corpus
petition be DISMISSED WITHOUT PREJUDICE as premature.

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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 twenty-one (21) days after being served with a copy, Petitioner may file written objections

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

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and Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28

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

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

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recommendation is not an order that is immediately appealable to the Ninth Circuit Court of

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Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure,

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should not be filed until entry of the District Court's judgment.

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IT IS SO ORDERED.
Dated:

/s/ Sheila K. Oberto

May 8, 2024

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UNITED STATES MAGISTRATE JUDGE

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