O'Neill v. State of California

Filing 13

ORDER signed by Magistrate Judge Kendall J. Newman on 06/23/16 ordering the clerk is directed to scan the form petition page 8 into CM/ECF. Respondent's motion to dismiss 8 is granted. Petitioner's application for a writ of habeas corpus is dismissed without prejudice; and the court declines to issue the certificate of appealability. CASE CLOSED. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NEAL ALLEN O’NEILL,

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Petitioner,

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No. 2:16-cv-0417 KJN P

v.

ORDER

JEROME PRICE,1

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Respondent.

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I. Introduction
Petitioner is a state prisoner, proceeding without counsel. Both parties consented to

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proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). Respondent moves to

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dismiss this federal habeas action, and lodged pertinent portions of petitioner’s state court

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records. Petitioner filed an opposition. For the reasons set forth below, respondent’s motion is

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granted, and the petition is dismissed without prejudice.

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II. Prior Proceedings
Petitioner was convicted of felony driving under the influence with priors, and driving

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with a blood alcohol content over 0.08%. (ECF No. 1 at 26.) A number of sentencing

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The current Warden of the Deuel Vocational Institution is Jerome Price, who is substituted as
respondent in this matter. Fed. R. Civ. P. 25(d); see Brittingham v. United States, 982 F.2d 378,
379 (9th Cir. 1992).
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enhancement allegations were found true. On May 20, 2015, petitioner was sentenced to a

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determinate term of five years in state prison. (ECF No. 1 at 26-27.)

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On June 12, 2015, petitioner filed an appeal in the California Court of Appeal. On April

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22, 2016, the case was fully briefed, and the appeal remains pending. People v. O’Neill, Case

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No. C079461 (Cal. Ct. App.) (ECF No. 1 at 162-79; Respondent’s Lodged Document (“LD”) 2.)

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On June 8, 2015, petitioner filed a petition for writ of habeas corpus in the El Dorado

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County Superior Court. (ECF No. 1 at 31.) On September 4, 2015, the El Dorado County

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Superior Court denied the petition in a reasoned decision. (ECF No. 1 at 28-30; 370-72.)

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On October 7, 2015, petitioner filed a petition for writ of habeas corpus in the California

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Court of Appeal, Third Appellate District. (LD 5.) On October 15, 2015, the California appellate

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court summarily denied the petition. (ECF No. 1 at 37.)

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On November 9, 2015, petitioner filed a petition for writ of habeas corpus in the

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California Supreme Court. (LD 7.) On February 3, 2016, the California Supreme Court denied

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the petition without comment. (ECF No. 1 at 38, 181.)

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III. Standard of Review

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Under Rule 4 of the Rules Governing Section 2254 Cases in the United States District

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Courts, the Court may dismiss a petition “[i]f it plainly appears from the petition and any attached

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exhibits that the petitioner is not entitled to relief in the district court. . . .” A motion to dismiss a

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petition for writ of habeas corpus is construed as a request for the Court to dismiss under Rule 4

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of the Rules Governing Section 2254 Cases. O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.

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1990).

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IV. Discussion

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Respondent moves to dismiss this federal habeas action because direct review is still

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pending in the state courts, rendering the instant petition premature. In his petition, petitioner

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concedes that his “presentence credit appeal is still pending in the Third District Court of

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Appeal.” (Form petition at p. 8.)2 Petitioner opposes the motion, claiming that on June 25, 2015,

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Respondent claims that the service copy of the federal petition as well as the petition scanned
into CM/ECF are missing two pages, form petition pages two and eight. (ECF No. 8 at 3.)
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he filed a motion seeking only in-custody credits and nothing further. (ECF No. 12 at 1.) He

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argues that “on appeal when a person seeks post-sentence credits, special circumstances that

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accompany habeas corpus [are] unnecessary,” and provides a copy of his abstract of judgment

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which he claims “reflects the basis for his appeal.” (Id.)

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As a matter of comity, a federal court will not grant habeas relief to a person held in state

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custody unless he has exhausted all available state judicial remedies on every ground presented in

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his habeas petition. 28 U.S.C. § 2254(b)(1)(A); see also O’Sullivan v. Boerckel, 526 U.S. 838,

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845 (1999) (the exhaustion doctrine is designed to give state courts a full and fair opportunity to

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resolve any federal constitutional claims before they are presented to the federal courts). To

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exhaust state judicial remedies, each claim must be fairly presented to and disposed of on the

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merits by the state’s highest court. Rose v. Lundy, 455 U.S. 509, 518-22 (1982). A claim has not

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been fairly presented unless the prisoner describes the operative facts and federal legal theory on

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which the claim is based. Duncan v. Henry, 513 U.S. 364, 365–66 (1995).

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Similarly, federal courts must abstain from interfering in pending state proceedings,

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absent extraordinary circumstances that create a threat of irreparable injury. Younger v. Harris,

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401 U.S. 37, 45-46 (1971). Interests of comity and federalism underlie the general rule and

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counsel federal courts to maintain respect for state functions, and to not unduly interfere with the

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state’s good faith efforts to enforce its own laws in its own courts. See, e.g., Middlesex Cty.

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Ethics Comm. v. Garden State Bar Assoc., 457 U.S. 423, 431 (1982); Dubinka v. Judges of

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Superior Court of State of California, Los Angeles, 23 F. 3d 218, 223 (9th Cir. 1994).

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This abstention doctrine extends to situations where the prisoner has any post-conviction

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challenge to his conviction still pending in the state courts, “even where the issue to be challenged

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in the writ of habeas corpus has been finally settled in the state courts.” Sherwood v. Tomkins,

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716 F.2d 632, 634 (9th Cir. 1983); see also Schnepp v. Oregon, 333 F.2d 288, 288 (9th Cir. 1964)

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(state remedies not exhausted where a state post-conviction proceeding is pending). The rationale

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However, the form petition page two is scanned in as ECF No. 1 at 1. The form petition page
eight was not scanned in; however, the hard copy of the petition maintained on paper, does
contain the form petition page eight. The Clerk is directed to scan the form petition page 8 into
CM/ECF.
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is that “[i]f the prisoner’s claim is meritorious, and if the state remedy is prompt and complete,

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there is no need to bring post-conviction proceedings in federal courts.” Sherwood, 716 F.2d at

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633. Put another way, “even if the federal constitutional question raised by the habeas corpus

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petitioner cannot be resolved in a pending state appeal, that appeal may result in the reversal of

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the petitioner’s conviction on some other ground, thereby mooting the federal question.” Id. at

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634.

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Here, the instant petition is premature because petitioner’s conviction and sentence have

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not become final. Petitioner’s direct appeal is presently pending before the California Court of

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Appeal, Third Appellate District, which may affect his habeas claim.3 Sherwood, 716 F.2d at

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634; cf. Burton v. Stewart, 549 U.S. 147, 156-57 (2007) (a petitioner may only seek federal

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habeas relief after his conviction and sentence become final by the conclusion of direct review or

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the expiration of the time for seeking such review). The California state courts must be afforded

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the opportunity to remedy any alleged constitutional violations in the first instance.

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Even if petitioner has exhausted the instant claims by presenting such habeas claims in the

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California Supreme Court, the issue here “is not one of exhaustion but rather is one of avoiding

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interference with pending state criminal proceedings.” Trammel v. Warden, Case No. 09-cv-

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4195-AG, 2009 WL 2407665, at *1 (C.D. Cal. Jul. 31, 2009) (citing Sherwood, 716 F.2d at 634).

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Accordingly, because petitioner’s direct appeal remains pending in state court, which may

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moot or otherwise affect his alleged constitutional claim before this court, petitioner must await

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the outcome of his direct appeal before presenting his claim in federal court. The petition is

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dismissed without prejudice.

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V. Conclusion

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. The Clerk is directed to scan the form petition page 8 into CM/ECF.

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2. Respondent’s motion to dismiss (ECF No. 8) is granted;

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The court takes judicial notice of the docket of the California Court of Appeal in No. C079461,
available at http://appellatecases.courtinfo.ca.gov. See Fed. R. Evid. 201; Harris v. County of
Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012) (noting that a court may take judicial notice of
court records).
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3. Petitioner’s application for a writ of habeas corpus is dismissed without prejudice; and

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4. The court declines to issue the certificate of appealability referenced in 28 U.S.C.

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§ 2253.

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Dated: June 23, 2016

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onei0417.mtd.156

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