Brashear v. Foulk et al

Filing 7

ORDER signed by Magistrate Judge Craig M. Kellison on 11/18/14 ORDERING that Petitioners motion for leave to proceed in forma pauperis 2 is granted; and Petitioner shall show cause in writing, within 30 days of the date of this order, why his petition for a writ of habeas corpus should not be summarily dismissed.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DEMETRIUS K. BRASHEAR,

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Petitioner,

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No. 2:14-cv-2136-CMK-P

vs.

ORDER

FOULK, et al.,

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Respondents.

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Petitioner, a state prisoner proceeding with counsel, brings this petition for a writ

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of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has consented to Magistrate Judge

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jurisdiction pursuant to 28 U.S.C. § 636(c) and no other party has been served or appeared in the

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action.

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Petitioner seeks leave to proceed in forma pauperis. Petitioner has submitted the

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affidavit required by 28 U.S.C. § 1915(a) showing that petitioner is unable to prepay fees and

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costs or give security therefor. The request will be granted.

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Also pending before the court is petitioner’s petition for a writ of habeas corpus

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(Doc. 1). Rule 4 of the Federal Rules Governing Section 2254 Cases provides for summary

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dismissal of a habeas petition “[i]f it plainly appears from the face of the petition and any
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exhibits annexed to it that the petitioner is not entitled to relief in the district court.” In the

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instant case, it is plain that petitioner is not entitled to federal habeas relief.

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This court may “entertain an application for a writ of habeas corpus in behalf of a

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person in custody pursuant to the judgment of a State Court only on the ground that he is in

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custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §

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2254(a). Principles of comity and federalism require that this court abstain and not entertain

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Petitioner’s pre-conviction habeas challenge unless he shows that: (1) he has exhausted available

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state judicial remedies, and (2) “special circumstances” warrant federal intervention. See Carden

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v. Montana, 626 F.2d 82, 83-84 (9th Cir.1980). Only in cases of proven harassment or

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prosecutions undertaken by state officials in bad faith without hope of obtaining a valid

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conviction and perhaps in other special circumstances where irreparable injury can be shown is

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federal injunctive relief against pending state prosecutions appropriate. See id. at 84 (citing

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Perez v. Ledesma, 401 U.S. 82, 85 (1971)).

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In his petition, petitioner makes it clear he is still waiting trial on new charges for

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murder of an inmate. He makes no showing of any “special circumstances” warranting federal

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intervention before the trial is held and any appeal is completed. See id. He seems to question

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the evidence being used against him, as well as the culpability of the prison staff and medical

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staff. However, the allegations regarding the sufficiency of the evidence against him, and the

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staff’s reaction to and/or responsibility for the death of the inmate, are issues best left to the trial

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court. Thus, there is no sufficient showing of harassment or bad faith on the facts submitted in

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the petition. In addition, petitioner makes it clear that he has not even attempted to exhausted his

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state court remedies as to any of his claims.

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Based on the foregoing, petitioner is required to show cause in writing, within 30

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days of the date of this order, why his petition for a writ of habeas corpus should not be

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summarily dismissed, without prejudice. Petitioner is warned that failure to respond to this order

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may result in dismissal of the petition for the reasons outlined above, as well as for failure to
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prosecute and comply with court rules and orders. See Local Rule 110. If petitioner agrees that

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this action should be dismissed without prejudice to renewal following exhaustion of his claims

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in state court, he should file a request for voluntary dismissal pursuant to Federal Rule of Civil

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Procedure 41(a)(1).

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Petitioner’s motion for leave to proceed in forma pauperis (Doc. 2) is

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Petitioner shall show cause in writing, within 30 days of the date of this

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granted; and

order, why his petition for a writ of habeas corpus should not be summarily dismissed.

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DATED: November 18, 2014
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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