Pagtakhan v. Foulk

Filing 38

ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS (Illston, Susan) (Filed on 10/3/2011) (Additional attachment(s) added on 10/3/2011: # 1 Envelope) (tf, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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MARLON E. PAGTAKHAN,

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No. C 09-5495 SI (pr)

Petitioner,
ORDER DISMISSING PETITION FOR
WRIT OF HABEAS CORPUS

v.
ED FOULK,

Docket Nos. 23, 24, 30 & 35
Respondent.

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/

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INTRODUCTION

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Petitioner Marlon Pagtakhan, a pretrial detainee involuntarily committed to Napa State

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Hospital pending a restoration of his competency to stand trial in San Mateo County Superior

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Court, filed this pro se action seeking a writ of habeas corpus under 28 U.S.C. § 2241.

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Pagtakhan seeks relief in the form of enjoining all further state proceedings and his immediate

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release from state custody.

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As set forth below, because state proceedings regarding Pagtakhan’s competency to stand

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trial are ongoing, the court must abstain from entertaining his federal petition. The petition will

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be DISMISSED without prejudice subject to Pagtakhan refiling once state proceedings have

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been completed.1
BACKGROUND

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On November 19, 2009, pro se petitioner Marlon Pagtakhan, a pretrial detainee

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involuntarily committed to Napa State Hospital pending a restoration of his competency to stand

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trial in San Mateo County Superior Court, filed a petition for writ of habeas corpus under 28

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U.S.C. § 2241. Doc. No. 1. His petition indicates he was arrested on August 11, 2007, and

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arraigned shortly thereafter on charges of multiple counts of stalking, stalking with a prior

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conviction for stalking, and making criminal threats. Before the preliminary hearing was held,

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Pagtakhan’s attorney declared a doubt about his competency. That eventually led to mental

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United States District Court
For the Northern District of California

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examinations and a determination on October 24, 2007 that Pagtakhan was not competent to

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stand trial; he subsequently was committed to the California Department of Mental Health on

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November 16, 2007. See Doc. No. 1, Petition Exhibits, Order Of Denial in In Re: Pagtakhan,

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San Mateo County Superior Court Case Nos. MH 463328A and HC 1973.

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After reviewing the petition filed here, the court determined that “[t]he only claims that

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may proceed here are the claims pertaining to Pagtakhan’s allegedly improper commitment to

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a mental hospital pursuant to California Penal Code § 1370.” Doc. No. 3, Order of Partial

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Dismissal And To Show Cause, p. 4. The court then identified those claims as ineffective

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assistance of counsel, denial of the opportunity to cross examine witnesses (i.e., the doctors) and

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insufficient evidence to support the commitment order. Id., p. 5. Respondent has filed an

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answer and Pagtakhan has filed a traverse. See Doc. Nos. 6 &7.

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After the matter was submitted, Pagtakhan filed numerous documents with the court,

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some of which appeared to suggest that Pagtakhan had been returned to San Mateo County

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Superior Court and that further competency proceedings had been initiated against him. See,

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e.g., “Addendum Brief on Continued Barratry, Fraud, and Misrepresentation in the State Court,”

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Because the court must abstain from entertaining Pagtakhan’s habeas petition, his
pending motions for reconsideration of the denial of his motion for speedy trial (Doc. No. 23),
27 appointment of counsel (Doc. No. 24) and oral argument (Doc. No. 30), and his “Ex Parte
Motion to Advance Proceedings (and Request for Immediate Habeas Corpus Relief)” (Doc. No.
28 35), also are DISMISSED.
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p. 2. Given the possibility that further competency proceedings may have rendered the present

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petition moot, the court directed the parties to show cause addressing the issue of mootness, and

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the parties complied. See Doc. Nos. 11 & 21.
According to respondent’s answer to the order to show cause, in December 2010 the San

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Mateo County District Attorney’s office requested a current mental health evaluation for

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Pagtakhan and intended to pursue a “Murphy conservatorship” against him if that evaluation

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indicated he remained incompetent to stand trial.2 See Doc. No. 26, Response to Order to Show

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Cause Re: Mootness, p. 2. Respondent also noted, based on the information conveyed by the

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county prosecutor, “it appears that at the present time the habeas petition is not moot, as

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United States District Court
For the Northern District of California

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petitioner is currently being detained as incompetent pursuant to the 2007 proceeding he has

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challenged in his habeas petition. However, if he is placed under a conservatorship, the petition

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will likely be moot.” Id.

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On September 16, 2011, respondent filed an “Update to Status of State Court

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Proceedings,” explaining that Pagtakhan is awaiting a conservatorship trial, set for October 13,

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2011, and that his pending criminal trial is trailing the conservatorship proceedings. Doc. No.

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37 at 1.

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DISCUSSION
A.

Younger Abstention

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This court may entertain a petition for a writ of habeas corpus under 28 U.S.C. §

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2241(c)(3) by a person who is in custody but not yet convicted or sentenced. See McNeely v.

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Blanas, 336 F.3d 822, 824 n.1 (9th Cir. 2003); Application of Floyd, 413 F. Supp. 574, 576 (D.

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Nev. 1976). Although there is no exhaustion requirement for a petition brought under 28 U.S.C.

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§ 2241(c)(3), principles of comity and federalism require that a federal district court abstain and

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not entertain a pretrial habeas challenge unless the petitioner shows that: (1) he has exhausted

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A “Murphy conservatorship” refers to a conservatorship under California Welfare and
Institutions code section 5008(h)(1)(B). See Conservatorship of Murphy, 134 Cal. App.3d 15
(1982); People v. Karriker, 149 Cal.App.4th 763, 774–777, 780–781 (2007). That code section
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section 1370 and who presently is “gravely disabled” and consequently remains incompetent to
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available state judicial remedies, and (2) “special circumstances” warrant federal intervention.

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Carden v. Montana, 626 F.2d 82, 83–84 (1980); see also Younger v. Harris, 401 U.S. 37, 43–54

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(1971) (under principles of comity and federalism, a federal court should not interfere with

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ongoing state criminal proceedings by granting injunctive or declaratory relief absent

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extraordinary circumstances).
Younger abstention is required when: (1) state proceedings, judicial in nature, are

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pending; (2) the state proceedings involve important state interests; and (3) the state proceedings

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afford adequate opportunity to raise the constitutional issue. See Middlesex County Ethics

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Comm. v. Garden State Bar Ass’n., 457 U.S. 423, 432 (1982); Dubinka v. Judges of Superior

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United States District Court
For the Northern District of California

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Court, 23 F.3d 218, 223 (9th Cir. 1994). All three elements must be present. Agriesti v. MGM

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Grand Hotels, Inc., 53 F.3d 1000, 1001 (9th Cir. 1995) (abstention improper where arrest and

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issuance of citation were executive acts not judicial in nature, and only potential for future state

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judicial proceedings existed). A fourth requirement, articulated by the Ninth Circuit, is that “the

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federal court action would enjoin the state proceeding or have the practical effect of doing so,

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i.e., would interfere with the state proceeding in a way that Younger disapproves.”

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SJSVCCPAC v. City of San Jose, 546 F.3d 1087, 1092 (9th Cir. 2008) (citing cases). Although

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abstention is the exception, not the rule, see World Famous Drinking Emporium, Inc. v. City of

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Tempe, 820 F.2d 1079, 1082 (9th Cir. 1987), Younger and its companion cases generally require

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a federal district court to abstain from granting injunctive relief when state criminal actions or

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certain categories of state civil or administrative proceedings are pending against the federal

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plaintiff at the time he or she commences the federal action. See Pennzoil Co. v. Texaco, Inc.,

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481 U.S. 1, 10–18 (1987).

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Abstention may be inappropriate in the “extraordinary circumstance” that: (1) the party

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seeking relief in federal court does not have an adequate remedy at law and will suffer

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irreparable injury if denied equitable relief, see Mockaitis v. Harcleroad, 104 F.3d 1522, 1528

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(9th Cir. 1997) (citing Younger, 401 U.S. at 43–44); or (2) the state tribunal is incompetent by

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reason of bias, see Gibson v. Berryhill, 411 U.S. 564, 577–79 (1973). For instance, special

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circumstances that might warrant federal habeas intervention before trial include proven
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harassment, bad faith prosecutions and other extraordinary circumstances where irreparable

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injury can be shown. Carden, 626 F.2d at 84 (violation of Sixth Amendment right to a speedy

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trial not alone an extraordinary circumstance).

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B.

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Competency Proceedings Under California Statutory Law
California Penal Code section 1367 prohibits the trial or punishment of a mentally

incompetent person, as follows:

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A person cannot be tried or adjudged to punishment while that
person is mentally incompetent. A defendant is mentally
incompetent for purposes of this chapter if, as a result of mental
disorder or developmental disability, the defendant is unable to
understand the nature of the criminal proceedings or to assist
counsel in the conduct of a defense in a rational manner.

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United States District Court
For the Northern District of California

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Id., subd. (a).3
At the time of Pagtakhan’s pre-trial proceedings, California Penal Code section 1368 read
in relevant part:

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(b)

If counsel informs the court that he believes the defendant is or may be mentally
incompetent, the court shall order that the question of the defendant’s mental
competence is to be determined in a hearing which is held pursuant to Sections
1368.1 and 1369. If counsel informs the court that he or she believes the
defendant is mentally competent, the court may nevertheless order a hearing. Any
hearing shall be held in the superior court.

(c)

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Except as provided in Section 1368.1, when an order for a hearing into the present
mental competence of the defendant has been issued, all proceedings in the
criminal prosecution shall be suspended until the question of the present mental
competence of the defendant has been determined.

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Id. Once defense counsel has declared a doubt as to the defendant’s competency, “[t]he court

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court shall appoint a psychiatrist or licensed psychologist, and any other expert the court may

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deem appropriate, to examine the defendant.” Cal. Penal Code § 1369, subd. (a). The

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examining doctors must then:

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evaluate the nature of the defendant’s mental disorder, if any, the
defendant’s ability or inability to understand the nature of the

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“It is well established that the Due Process Clause of the Fourteenth Amendment
prohibits the criminal prosecution of a defendant who is not competent to stand trial.” Medina
28 v. California 505 U.S. 437, 439 (1992).
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criminal proceedings or assist counsel in the conduct of a defense
in a rational manner as a result of a mental disorder and, if within
the scope of their licenses and appropriate to their opinions, whether
or not treatment with antipsychotic medication is medically
appropriate for the defendant and whether antipsychotic medication
is likely to restore the defendant to mental competence.

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Id.
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After a competency hearing is held and the defendant is determined incompetent to stand
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United States District Court
For the Northern District of California

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trial, the trial “shall be suspended until the person becomes mentally competent.” Cal. Penal
Code § 1370, subdivision (a)(1)(B). The court then “shall order that the mentally incompetent
defendant be delivered by the sheriff to a state hospital for the care and treatment of the mentally
disordered[] … .” Id., subd. (a)(1)(B)(i).
California Penal Code section 1370, subdivision (c)(1) provides the following limit on
the duration of time a defendant may be committed to a state hospital for incompetency
treatment:
At the end of three years from the date of commitment or a period
of commitment equal to the maximum term of imprisonment
provided by law for the most serious offense charged in the
information, indictment, or misdemeanor complaint, whichever is
shorter, a defendant who has not recovered mental competence shall
be returned to the committing court. The court shall notify the
community program director or a designee of the return and of any
resulting court orders.

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Id. Once an incompetent defendant has been committed for the maximum commitment period
and returned to the committing court, if it appears to the court that the defendant is “gravely
disabled,” the court shall order the county conservatorship investigator to initiate a “Murphy
conservatorship.” See People v. Karriker, 149 Cal.App.4th at 774–777; Cal. Penal code § 1370,
subd. (c)(2); Cal. Welf. & Inst. Code § 5008, subd. (h)(1)(B). A person is considered “gravely
disabled” under California Welfare and Institutions Code section 5008(h)(1)(B) if the following
conditions are met:

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(i) The indictment or information pending against the defendant at
the time of commitment charges a felony involving death, great
bodily harm, or a serious threat to the physical well-being of
another person.

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(ii) The indictment or information has not been dismissed.

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(iii) As a result of mental disorder, the person is unable to
understand the nature and purpose of the proceedings taken against
him or her and to assist counsel in the conduct of his or her defense
in a rational manner.

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Id. The court may impose a Murphy conservatorship if it finds the defendant, as a result of a
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mental disorder, “‘represents a substantial danger of physical harm to others.’” Karriker, 149
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United States District Court
For the Northern District of California

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Cal.App. 4th at 776; Conservatorship of Hofferber, 28 Cal.3d 161, 176–177 (1980).
Alternatively, the court may dismiss the charges and order the defendant released, without
prejudice

to

the

initiation

of

alternative

proceedings

under

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Lanterman–Petris–Short Act.4 Cal. Penal code § 1370, subd. (e); In re Davis, 8 Cal.3d 798, 806
(1973).
C.

Analysis
Here, the record shows that competency proceedings were initiated against Pagtakhan

once his defense counsel declared a doubt about Pagtakhan’s competency. Pagtakhan then
underwent mental examinations and was found not competent to stand trial; he subsequently was
committed to the California Department of Mental Health. See Doc. No. 1, Petition Exhibits,
Order Of Denial in In Re: Pagtakhan, San Mateo County Superior Court Case Nos. MH
463328A and HC 1973. The record further demonstrates that at the end of Pagtakhan’s threeyear commitment and in accordance with California Penal Code section 1370, subdivision (c)(1),
Pagtakhan became the subject of conservatorship proceedings. See Doc. No. 37, Update to
Status of State Court Proceedings.
While it is clear from Pagtakhan’s many filings with this court he is dissatisfied with his
present situation, it is equally as clear that this action meets all the requirements for
Younger abstention to apply. See Middlesex County Ethics Comm. v. Garden State Bar Ass’n.,
457 U.S. at 432; Dubinka v. Judges of Superior Court, 23 F.3d at 223 (federal district court must
abstain when: (1) state proceedings, judicial in nature, are pending; (2) the state proceedings

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commitment

Cal. Welf. & Inst. Code section 5000 et seq.
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involve important state interests; and (3) the state proceedings afford adequate opportunity to

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raise the constitutional issue); SJSVCCPAC v. City of San Jose, 546 F.3d at 1092 (federal

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district court must abstain when “the federal court action would enjoin the state proceeding or

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have the practical effect of doing so, i.e., would interfere with the state proceeding in a way that

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Younger disapproves.”).

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Accordingly, the action is DISMISSED without prejudice. The clerk is directed to
terminate any pending motions as moot and close the file.

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United States District Court
For the Northern District of California

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IT IS SO ORDERED.
DATED: October 3, 2011
SUSAN ILLSTON
United States District Judge

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