Remmert v. Lee et al

Filing 15

ORDER OF DISMISSAL RE: ECF Nos. 3 & 13. Signed by Judge Charles R. Breyer on 8/16/2017. (Attachments: # 1 Certificate/Proof of Service)(lsS, COURT STAFF) (Filed on 8/16/2017)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SHIRLEY V. REMMERT,
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Petitioner,
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vs.
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CARLOS BOLANOS, Sherriff,
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Respondent.
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No. C 17-3856 CRB (PR)
ORDER OF DISMISSAL
(ECF Nos. 3 & 13)

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Petitioner Shirley V. Remmet, a detainee at the San Mateo County Jail

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awaiting sentencing after a state superior court jury found her guilty of theft/

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embezzlement of an elder or dependent person by a caretaker and related

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offenses, has filed a pro se petition for a writ of habeas corpus challenging the

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state criminal proceedings against her. She also seeks leave to proceed in forma

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pauperis (IFP) and appointment of counsel.

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Petitioner may challenge her pre-sentence detention on state criminal

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charges by way of a petition for a writ of habeas corpus under 28 U.S.C. § 2241.

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But principles of comity and federalism require that this court abstain and not

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entertain any such pre-sentence habeas challenge unless petitioner shows that:

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(1) she has exhausted available state judicial remedies, and (2) “special

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circumstances” warrant federal intervention. Carden v. Montana, 626 F.2d 82,

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83-84 (9th Cir. 1980). Only in cases of proven harassment or prosecutions

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undertaken by state officials in bad faith without hope of obtaining a valid

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conviction and perhaps in other special circumstances where irreparable injury

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can be shown is federal injunctive relief against ongoing state prosecutions

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appropriate. Id. at 84 (citing Perez v. Ledesma, 401 U.S. 82, 85 (1971)).

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Petitioner makes no such showing of “special circumstances” warranting federal

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intervention. See id. The petition for a writ of habeas corpus accordingly is

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DISMISSED without prejudice to refiling after state criminal proceedings,

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including sentencing and appeal, are completed.

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Based solely on her affidavit of poverty, petitioner’s request to proceed
IFP (ECF No. 13) is granted. But her request for appointment of counsel (ECF

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No. 3) is denied as moot.

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SO ORDERED.

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DATED:

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August 16, 2017

CHARLES R. BREYER
United States District Judge

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G:\PRO-SE\CRB\HC.17\Remmert, S.17-3856.dismissal.wpd

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