(HC)Whitsitt v. People of California

Filing 7

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 6/4/2021 ORDERING the Clerk to assign a district judge to this action and RECOMMENDING petitioner's 1 application for a writ of habeas corpus be summarily dismissed without prejudice, and this court decline to issued the certificate of appealability referenced in 28 U.S.C. § 2253. Assigned and referred to Judge Kimberly J. Mueller; Objections to F&R due within 21 days. (Yin, 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 WILLIAM J. WHITSITT, 12 13 14 15 No. 2:21-cv-00871 GGH P Petitioner, v. PEOPLE OF CALIFORNIA, ORDER AND FINDINGS AND RECOMMENDATIONS Respondent. 16 17 Petitioner, a pretrial detainee, proceeding pro se, has filed a petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. 2241. Petitioner has not, however, filed an in forma pauperis 19 affidavit or paid the required filing fee ($5.00). See 28 U.S.C. §§ 1914(a); 1915(a). Nevertheless, 20 the undersigned will recommend summary dismissal of the pending petition based on a failure to 21 raise a federal cognizable claim. 22 The Rules Governing Section 2254 Cases in the United States District Courts (Habeas 23 Rules) may be applied to proceedings undertaken pursuant to 28 U.S.C. § 2241. Habeas Rule 24 1(b). Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254 provides for 25 summary dismissal of a habeas petition “[i]f it plainly appears from the face of the petition and 26 any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” In the 27 instant case, it is plain from the petition and appended exhibits that petitioner is not entitled to 28 federal habeas relief. Therefore, the petition should be summarily dismissed. 1 1 The habeas petition challenges charges against petitioner currently pending in state court. 2 ECF No. 1 at 1. Petitioner asserts there has been a delay in his arraignment hearing, violations of 3 due process, fabricated and false evidence from witnesses, ineffective assistance of counsel, 4 malicious prosecution and a deprivation of civil rights. Id. at 6-7, 11-24. Petitioner seeks release 5 from pretrial detention, a fair trial in another county, dismissal of pending charges, and “a new 6 trial on past charges[.]” Id. at 7. 7 Pursuant to 28 U.S.C. § 2241, this court has jurisdiction to consider the pending habeas 8 petition brought by a pretrial detainee. McNeely v. Blanas, 336 F.3d 822, 824 n. 1 (9th Cir. 2003) 9 (citing Braden v. Judicial Circuit Court, 410 U.S. 484, 503 (1973)). However, when challenging 10 ongoing criminal proceedings, principals of comity and federalism weigh against federal courts 11 interfering with ongoing state criminal proceedings. Younger v. Harris, 401 U.S. 37 (1971). 12 Younger abstention is applicable if the state court proceeding is 1) currently pending; 2) involves 13 an important state interest; and 3) provides an adequate opportunity to raise constitutional 14 challenges in the state court proceedings. Middlesex Cty. Ethics Comm. v. Garden State Bar 15 Ass'n, 457 U.S. 423, 432 (1982). If the Younger requirements are satisfied, abstention is required 16 unless “state proceedings are conducted in bad faith or to harass the litigant, or other 17 extraordinary circumstances exist[.]” Baffert v. California Horse Racing Bd., 332 F.3d 613, 621 18 (9th Cir. 2003). 19 In the instant action, the Younger requirements are satisfied. According to petitioner, he is 20 currently being detained in San Joaquin county jail on criminal charges in San Joaquin Superior 21 Court. It is evident that petitioner’s criminal proceedings are ongoing and any relief granted by 22 this court would interfere with the pending proceedings. Moreover, ongoing criminal proceedings 23 implicate important state interests. Additionally, petitioner has an adequate opportunity to raise 24 constitutional challenges in his ongoing criminal proceeding and in his appeals. Lastly, petitioner 25 has not established extraordinary circumstances exist to establish any exception to the Younger 26 abstention. 27 28 Furthermore, petitioner has not exhausted state court remedies. //// 2 1 Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must 2 issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A 3 certificate of appealability may issue only “if the applicant has made a substantial showing of the 4 denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For the reasons set forth in these 5 findings and recommendations, a substantial showing of the denial of a constitutional right has 6 not been made in this case. 7 8 In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court assign a district judge to this action. 9 Further, IT IS HEREBY RECOMMENDED that: 10 11 1. Petitioner's application for a writ of habeas corpus be summarily dismissed without prejudice; and 12 13 14 2. This court decline to issue the certificate of appealability referenced in 28 U.S.C. § 2253. These findings and recommendations are submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days 16 after being served with these findings and recommendations, petitioner may file written 17 objections with the court. The document should be captioned “Objections to Magistrate Judge's 18 Findings and Recommendations.” Failure to file objections within the specified time may waive 19 the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.1991). 20 Dated: June 4, 2021 21 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 3

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