Gibbs v. State of California

Filing 7

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 06/15/18 RECOMMENDING that petitioner's petition for a writ of habeas corpus 1 be summarily dismissed. Referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, 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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ROBERT A. GIBBS,

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No. 2:18-CV-0225-KJM-CMK-P

Petitioner,

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vs.

FINDINGS AND RECOMMENDATIONS

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STATE OF CALIFORNIA,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner’s petition for

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a writ of habeas corpus (Doc. 1).

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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 because the court

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lacks jurisdiction.

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Under 28 U.S.C. § 2254, habeas corpus relief is available for a person “in custody

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pursuant to the judgment of a State court. . . .” It is clear from petitioner’s petition that he is a

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pre-trial detainee and that his trial has not yet occurred. Therefore, petitioner is not in custody

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pursuant to a state court judgment. While federal habeas relief may be available under 28 U.S.C.

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§ 2241 for pre-trial detainees, see McNeely v. Blanas, 336 F.3d 822, 824 n.1 (9th Cir. 2003),

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principles of comity and federalism require that this court abstain from hearing such cases until

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all state criminal proceedings are completed and the petitioner exhausts available state court

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remedies, see Carden v. Montana, 626 F.2d 82, 83-84 & n.1 (9th Cir. 1980); see also Younger v.

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Harris, 401 U.S. 37, 43-54 (1971). An exception to this rule applies where there is proven

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harassment or bad faith prosecution. See Carden, 626 F.2d at 84. In this case, petitioner does not

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allege harassment or bad faith prosecution. Rather, he argues that California Penal Code § 422 is

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unconstitutional.

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Based on the foregoing, the undersigned recommends that petitioner’s petition for
a writ of habeas corpus (Doc. 1) be summarily dismissed.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

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

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objections with the court. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: June 15, 2018
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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