Azevedo v. Colusa County

Filing 6

ORDER signed by Magistrate Judge Kendall J. Newman on 1/26/2017 GRANTING petitioner's 2 motion to proceed IFP; petitioner's application for a writ of habeas corpus is DISMISSED without prejudice; and the court DECLINES to issue the certificate of appealability referenced in 28 U.S.C. § 2253. CASE CLOSED. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALEX LEONARD AZEVEDO,

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Petitioner,

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No. 2:17-cv-0117 KJN P

v.

ORDER

COLUSA COUNTY,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis.

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Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs

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of suit. Accordingly, the request for leave to proceed in forma pauperis is granted. See 28 U.S.C.

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§ 1915(a). Petitioner consented to proceed before the undersigned for all purposes. See 28

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U.S.C. § 636(c). As explained below, this case must be dismissed.

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The instant petition was filed on January 18, 2017, and challenges his November 23, 2016

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conviction in the Colusa County Superior Court. Federal court records reveal that on January 18,

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2017, petitioner filed a federal habeas petition that also challenges the 2016 Colusa County

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conviction. Azevedo v. People of the State of California, Case No. 2:17-cv-0115 GGH (E.D.

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Cal.).1 Petitioner is cautioned that all federal challenges to the same conviction must be raised in

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one federal petition. See Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008) (If a new petition is

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filed when a previous habeas petition is still pending before the district court without a decision

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having been rendered, then the new petition should be construed as a motion to amend the

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pending petition.). However, in the earlier-filed petition, petitioner concedes that he is trying to

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appeal the criminal conviction “now.” Id., ECF No. 1 at 5.

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Review of the California Courts Appellate Courts Case Information website confirms that

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petitioner is pursuing two appeals that remain pending in the Third Appellate District, Case Nos.

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C083685, C083727. In both cases, petitioner was appointed counsel on January 20, 2017, and his

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opening brief is due February 21, 2017. Id. The California Supreme Court website reflects no

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filing on behalf of petitioner.

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Because petitioner’s criminal appeal remains pending, this court must abstain from

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addressing the instant petition. Principles of comity and federalism weigh against a federal court

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interfering with ongoing state criminal proceedings by granting injunctive or declaratory relief

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absent extraordinary circumstances. Younger v. Harris, 401 U.S. 37, 43-54 (1971). Younger

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abstention is required when 1) state proceedings, judicial in nature, are pending; 2) state

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proceedings involve important state interests; and 3) the state proceedings afford adequate

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opportunity to raise the constitutional issue. See Middlesex County Ethic Comm. v. Garden State

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Bar Ass’n., 457 U.S. 423, 432 (1982); Ohio Civil Rights Comm’n v. Dayton Christian Schs., Inc.,

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477 U.S. 619, 627 (1986). “When a case falls within the proscription of Younger, a district court

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must dismiss the federal action.” Fresh Int’l Corp. v. Agricultural Labor Relations Bd., 805 F.2d

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1353, 1356 (9th Cir. 1986). In addition, there is no discretion to grant injunctive relief if the case

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is within the Younger category of cases. Id. (citing Colorado River Water Conservation Dist. v.

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United States, 424 U.S. 800, 816 n.22 (1976)).

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In his earlier-filed federal petition, petitioner concedes his direct appeal of his criminal
conviction is pending, and in the instant case, he references his appeal No. C083685, which state
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A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d
500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
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court records confirm remains pending. Id. Criminal proceedings, by their very nature, involve

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important state interests. Petitioner has an adequate opportunity to raise the constitutional issues

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underlying his conviction in either his habeas case or his direct appeal. Irreparable injury does

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not exist in such situations if the threat to petitioner’s federally protected rights may be eliminated

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by his appeal of the criminal case. Moreover, “even irreparable injury is insufficient [to permit

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interference with the proceeding] unless it is ‘both great and immediate.’” Younger, 401 U.S. at

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46 (quoting Fenner v. Boykin, 271 U.S. 240, 243-44 (1926)). Petitioner has failed to demonstrate

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extraordinary circumstances; therefore this petition is barred by the Younger abstention doctrine.

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

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1. Petitioner’s motion to proceed in forma pauperis is granted;

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2. Petitioner’s application for a writ of habeas corpus is dismissed without prejudice; and

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3. 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: January 26, 2017

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/azev0117.156.younger

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