(HC) Xiong v. Fox

Filing 14

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jeremy D. Peterson on 8/1/2022 ORDERING the Clerk to substitute Jennifer Benavidez as the respondent in this action, and RECOMMENDING respondent's 7 motion to dismiss be granted and the petition be dismissed under the abstention doctrine in Younger v. Harris, 401 U.S. 37 (1971). Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days. (Yin, K)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 FOR THE EASTERN DISTRICT OF CALIFORNIA 7 8 YOR XIONG, 9 Petitioner, 10 11 Case No. 2:22-cv-00538-TLN-JDP (HC) v. JENNIFER BENAVIDEZ, Respondent.1 12 FINDINGS AND RECOMMENDATIONS THAT RESPONDENT’S MOTION TO DISMISS BE GRANTED OBJECTIONS DUE IN FOURTEEN DAYS ECF No. 7 13 14 Petitioner Yor Xiong, a state prisoner represented by counsel, has filed a petition for a writ 15 of habeas corpus under 28 U.S.C. § 2254. ECF No. 1. Respondent has filed a motion to dismiss, 16 ECF No. 7, arguing that the state court judgment against petitioner is not yet final and that 17 petitioner has not exhausted his sole habeas claim. Petitioner has responded, ECF No. 12, and 18 respondent has filed a reply, ECF No. 13. The matter is on calendar for September 29, 2022, but 19 I find a hearing unnecessary to resolve the matter. I recommend that respondent’s motion to 20 dismiss be granted because petitioner’s conviction is not yet final. 21 No habeas rule specifically applies to motions to dismiss. See Hillery v. Pulley, 533 F. 22 Supp. 1189, 1194 (E.D. Cal. 1982) (“Motion practice in habeas corpus is not specifically 23 provided for in the rules but must be inferred from their structure and the Advisory Committee 24 Notes.”). The Ninth Circuit construes a motion to dismiss a habeas petition as a request for the 25 court to dismiss under Rule 4 of the Rules Governing § 2254 Cases, however. See O’Bremski v. 26 27 28 1 Respondent states that petitioner is currently incarcerated at the California Medical Facility where Jennifer Benavidez is warden. I will direct the Clerk of Court to substitute her as respondent. 1 1 Maass, 915 F.2d 418, 420 (9th Cir. 1991). Under Rule 4, I evaluate whether it “plainly appears” 2 that the petitioner is not entitled to relief and, if so, recommend dismissal of the petition. 3 Respondent argues that petitioner’s conviction is not final because, on September 22, 4 2020, the state appellate court remanded a gun enhancement to the trial court to determine 5 whether to maintain or strike it. ECF No. 7 at 2; ECF No. 8-2 at 75. As of the filing of 6 respondent’s motion to dismiss, the state trial court has not ruled on the matter. ECF No. 7 at 2. 7 Respondent contends that, under the abstention doctrine in Younger v. Harris, 401 U.S. 37 8 (1971), this court must dismiss petitioner’s habeas claims because they implicate pending state 9 criminal proceedings. I agree. 10 Younger abstention is required where: (1) state proceedings are ongoing; (2) the 11 proceeding implicates important state interests; (3) the plaintiff is not barred from litigating 12 federal constitutional issues in the state proceeding; and (4) “the federal court action would enjoin 13 the proceeding or have the practical effect of doing so, i.e., would interfere with the state 14 proceeding in a way that Younger disapproves.” San Jose Silicon Valley Chamber of Commerce 15 Political Action Comm. v. City of San Jose, 546 F.3d 1087, 1092 (9th. Cir. 2008). Here, the 16 proceedings are ongoing. Criminal proceedings implicate important state interests. See Kelly v. 17 Robinson, 479 U.S. 36, 49 (1986) (“[T]he States’ interest in administering their criminal justice 18 systems free from federal interference is one of the most powerful of the considerations that 19 should influence a court considering equitable types of relief.”). Petitioner has not been barred 20 from litigating his federal constitutional claims; in fact, as respondent notes in her reply, 21 petitioner may still be able to raise his ineffective assistance claim in a state habeas petition. See 22 ECF No. 13 at 2. Finally, granting petitioner’s ultimate requested relief—that his conviction be 23 overturned and he be released from custody—would interfere with the state court’s proceedings 24 regarding his enhancement. 25 For his part, petitioner does not dispute that the trial court has yet to decide the 26 enhancement issue that was remanded. ECF No. 12 at 2. He argues, however, that the third 27 Younger factor is not met, because the remand is limited to the issue of the enhancement and he 28 2 1 cannot raise his ineffective assistance claims in those proceedings.2 Id. But, as respondent 2 argues, petitioner has not yet exhausted the ineffective assistance of counsel claim he has 3 presented to this court. ECF No. 7 at 4. And he may present the issue to the state courts by way 4 of a habeas petition. ECF No. 13 at 2. 5 6 It is ORDERED that the Clerk of Court shall substitute Jennifer Benavidez as the respondent in this action. 7 I recommend that respondent’s motion to dismiss, ECF No. 7, be GRANTED and the 8 petition be dismissed under the abstention doctrine in Younger v. Harris, 401 U.S. 37 (1971). 9 These findings and recommendations are submitted to the U.S. district judge presiding 10 over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within fourteen days of the 11 service of the findings and recommendations, the parties may file written objections to the 12 findings and recommendations with the court and serve a copy on all parties. That document 13 must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 14 presiding district judge will then review the findings and recommendations under 28 U.S.C. 15 § 636(b)(1)(C). 16 17 IT IS SO ORDERED. 18 19 Dated: August 1, 2022 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 Petitioner also argues that “it is difficult to see how the pending enhancement issue could implicate ‘important state interests.’” ECF No. 12 at 2. He does not elaborate on this argument, however. As noted supra, it is settled law that ongoing criminal proceedings implicate important state interests. 3 2

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