McCoy v. Beard

Filing 15

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 12/11/14 recommending that respondent's motion to dismiss 13 be granted; and the petition be dismissed without prejudice. MOTION to DISMISS 13 referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOE LYNN McCOY,

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Petitioner,

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No. 2:14-cv-1999 JAM CKD P

v.

FINDINGS AND RECOMMENDATIONS

JEFFREY A. BEARD,

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Respondent.

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I. Introduction
In this pro se prisoner action pursuant to 28 U.S.C. § 2254, petitioner challenges his 2010

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conviction for torture, infliction of corporal injury, and related offenses. (ECF No. 1 at 1.)

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Before the court is respondent’s unopposed motion to dismiss the petition as premature, as an

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appeal of petitioner’s criminal sentence is currently pending in the state court of appeal. (ECF

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No. 13.) Having carefully reviewed the record and applicable law, the undersigned will

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recommend that respondent’s motion be granted.

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II. Procedural History
In December 2010, following a jury trial in the Sacramento County Superior Court,

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petitioner was convicted of multiple offenses stemming from an attack on his girlfriend that left

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her paralyzed. He was sentenced to an indeterminate term of 25 years to life in state prison.

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(Lod. Doc. 2 at 2.)1 Petitioner appealed his convictions. On May 3, 2013, the California Court of

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Appeal, Third Appellate District, affirmed the convictions but remanded for resentencing on two

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counts, citing an error in the abstract of judgment and the fact that “the trial court neglected to

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impose sentence on counts 2 and 3 before staying their execution pursuant to Penal Code 654,

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resulting in an unauthorized absence of sentence.” (Lod. Doc. 2 at 2-3, 56.) Petitioner sought

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review in the California Supreme Court, which denied review on August 14, 2013. (Lod. Docs.

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3-4.)

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On September 27, 2013, petitioner filed a notice of appeal from his resentencing in the
Third District Court of Appeal. (Lod. Doc. 1.) On July 14, 2014, he filed his opening brief,

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asking the court of appeal to independently review the record for any arguable issues pursuant to

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People v. Wende, 25 Cal. 3d 435 (1979). (Id.) On August 25, 2014, petitioner’s appeal was

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deemed fully briefed, and an opinion has yet to issue. (Id.)

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Petitioner filed the instant action on August 28, 2014, but did not indicate that an appeal

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of his resentencing was pending. (ECF No. 1.)

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III. Analysis

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A federal court generally will not enjoin or directly intercede in ongoing state court

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proceedings absent the most unusual circumstances. Younger v. Harris, 401 U.S. 37 (1971).

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Federal courts will abstain if the state proceeding 1) is currently pending, 2) involves an

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important state interest, and 3) affords the petitioner an adequate opportunity to raise

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constitutional claims. Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S.

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423, 432 (1982).

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In Phillips v. Vasquez, 56 F.3d 1030 (9th Cir. 1995), the Ninth Circuit considered whether

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Younger abstention was warranted where a federal habeas petitioner’s capital conviction was

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final but his sentence was still being appealed. It reasoned: “The state has already adjudicated

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Phillips’ guilt, its decision in that regard is final, and Phillips seeks nothing more than federal

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Lodged Documents refer to documents lodged by respondent on October 28, 2014. (ECF No.
14.)

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review of that decision. The ongoing state proceeding involves sentencing only, and the state is

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free to continue with its sentencing determination.” (Id. at 1033.) In such circumstances, the

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court concluded that the Younger doctrine did not preclude federal review of petitioner’s claims.

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More recently, however, Phillips has been characterized as a narrow holding that turned

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on the “unreasonably long delay” in the capital appeals process in Phillips’ case. Edelbacher v.

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Calderon, 160 F.3d 582, 585-586 (9th Cir. 1998). In a case where no unusual delay existed, the

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Ninth Circuit “decline[d] to depart from the general rule that a petitioner must await the outcome

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of the state proceedings before commencing his federal habeas corpus action.” Id. at 582-583;

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see id. at 586, n.5 (citing cases). See also Dean v. Sandor, 2011 WL 3652383 (C.D. Cal. July 12,

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2011) (where federal petition challenges constitutionality of conviction, and direct appeal of

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sentence is pending, Edelbacher controls, and petition must be dismissed pending outcome of

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state proceedings) (findings and recommendations adopted by district court on August 18, 2011).

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Because there has been no extreme delay in petitioner’s case, and in light of principles of

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comity and the risk of piecemeal litigation, the undersigned concludes that the Younger doctrine

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requires dismissal of this action without prejudice. See Beltran v. California, 871 F.2d 777, 782

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(9th Cir. 1988) (“Where Younger abstention is appropriate, a district court cannot refuse to

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abstain, retain jurisdiction over the action, and render a decision on the merits after the state

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proceedings have ended. To the contrary, Younger abstention requires dismissal of the federal

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action.”) (emphasis in original).2 Petitioner may re-file a federal habeas action when state

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proceedings concerning his conviction and sentence are complete.

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Accordingly, IT IS HEREBY RECOMMENDED THAT:

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1. Respondent’s motion to dismiss (ECF No. 13) be granted; and

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2. The petition be dismissed without prejudice.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, petitioner may file written

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As Younger abstention is appropriate, the court does not address respondent’s alternative
argument that this action be administratively stayed during the pendency of the appeal.
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objections with the court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Petitioner is advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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Dated: December 11, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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2/mcco1999.156b

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