Gonzales v. Beard

Filing 7

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 3/7/2017 ORDERING that petitioner's 6 Motion to Proceed IFP is GRANTED. IT IS HEREBY RECOMMENDED that the 1 petition be dismissed without prejudice pursuant to Rule 4. Referred to Judge William B. Shubb. Objections to F&R due within 14 days. (Zignago, K.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PHILLIP GONZALES, 12 13 14 No. 2:17-cv-0098 WBS CKD P Petitioner, v. ORDER AND JEFFREY BEARD, 15 FINDINGS AND RECOMMENDATIONS Respondent. 16 17 Petitioner is a state prisoner proceeding pro se who has requested authority pursuant to 28 18 U.S.C. § 1915 to proceed in forma pauperis. This proceeding was referred to this court by Local 19 Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Petitioner has submitted a declaration that makes the 20 showing required by 28 U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis 21 will be granted. 22 Petitioner challenges his 2011 conviction for second degree murder, resulting in a prison 23 sentence of 31 years to life. (ECF No. 1 at 2.) Petitioner appealed the judgment, which was 24 affirmed, and the California Supreme Court denied his petition for review. (Id.) Petitioner 25 further indicates that he filed a state petition for writ of habeas corpus in the Sacramento County 26 Superior Court on November 5, 2015, which is still pending. (Id.) 27 28 A federal court generally will not enjoin or directly intercede in ongoing state court proceedings absent the most unusual circumstances. Younger v. Harris, 401 U.S. 37 (1971). 1 1 Federal courts will abstain if the state proceeding 1) is currently pending, 2) involves an 2 important state interest, and 3) affords the petitioner an adequate opportunity to raise 3 constitutional claims. Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 4 423, 432 (1982). Here, petitioner admits that post-conviction proceedings are pending in state 5 court. The proceedings involve the important state interest of not having a federal court interfere 6 in ongoing state criminal proceedings to try collateral issues in piecemeal fashion. See Dubinka 7 v. Judges of Superior Court of State of Cal. for County of Los Angeles, 23 F.3d 218, 223 (9th Cir. 8 1994). Finally, it appears that petitioner has an adequate opportunity to raise his constitutional 9 claims in his pending state action. 10 The court need not abstain if there are extraordinary circumstances, such as when the state 11 court proceedings were undertaken for bad faith or for purposes of harassment, or where the 12 statute defining a criminal offense at issue is “flagrantly and patently violative of express 13 constitutional prohibitions.” Dubinka, 23 F.3d at 25; see Lebbos v. Judges of Superior Court, 14 Santa Clara County, 883 F.2d 810, 816 (9th Cir. 1989). Petitioner has made no showing that such 15 extraordinary circumstances are present. Where, as here, the Younger abstention doctrine 16 applies, it is appropriate to dismiss the action. See Gibson v. Berryhill, 411 U.S. 564, 577 (1973). 17 Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254 provides for 18 summary dismissal of a habeas petition “[i]f it plainly appears from the face of the petition and 19 any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” For the 20 foregoing reasons, the petition should be dismissed pursuant to Rule 4. 21 22 23 24 Accordingly, IT IS HEREBY ORDERED that petitioner’s request for leave to proceed in forma pauperis is granted. IT IS HEREBY RECOMMENDED that the petition (ECF No. 1) be dismissed without prejudice pursuant to Rule 4. 25 These findings and recommendations are submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 27 after being served with these findings and recommendations, any party may file written 28 objections with the court and serve a copy on all parties. Such a document should be captioned 2 1 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 2 objections shall be served and filed within fourteen days after service of the objections. The 3 parties are advised that failure to file objections within the specified time may waive the right to 4 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 5 Dated: March 7, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 2 / gonz0098.R4 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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