Carrea v. Cate

Filing 8

REPORT AND RECOMMENDATIONS re 7 MOTION to Dismiss Petition for Writ of Habeas Corpus: IT IS HEREBY RECOMMENDED that the Court issue an Order: (1) approving and adopting this Report and Recommendation; (2) granting Respondents Motion to Dismi ss; and (3) dismissing this action in its entirety without prejudice. Objections to R&R due by 7/24/2009, Replies due by 8/7/2009. Signed by Magistrate Judge Barbara Lynn Major on 7/9/2009. (All non-registered users served via U.S. Mail Service).(mjj)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CHRISTOPHER CARREA, JR, v. Petitioner, ) ) ) ) ) ) ) ) ) ) Civil No. 08cv2295 WQH (BLM) REPORT AND RECOMMENDATION FOR ORDER GRANTING RESPONDENT'S MOTION TO DISMISS [Doc. No. 7] UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

MATTHEW CATE, Secretary, Respondent.

This Report and Recommendation is submitted to United States District Judge William Q. Hayes pursuant to 28 U.S.C. § 636(b) and Local Civil Rules 72.1(d) and HC.2 of the United States District Court for the Southern District of California. On December 1, 2008, Petitioner Christopher Carrea, Jr., a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Doc. No. 1. Petitioner contends his

federal Constitutional rights were violated because: (1) he was denied his speedy trial rights due to his race; (2) his challenges to the denial of his speedy trial rights in the state courts were not heard by impartial judges; and (3) the San Diego District Attorney and California Attorney General engaged in purposeful discrimination in denying his
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speedy trial rights amounting to malicious prosecution actionable under 42 U.S.C. § 1983. Id. Petitioner also alleges that the district court

erroneously dismissed his first habeas petition on abstention grounds. Id. On April 9, 2009, Respondent filed a Motion to Dismiss. 7. Doc. No.

This Court has considered the Petition (Pet.), Respondent's Motion

to Dismiss (Resp't Mem.), and all supporting documents submitted by the parties. For the reasons set forth below, this Court RECOMMENDS that

Respondent's Motion to Dismiss be GRANTED. FACTUAL AND PROCEDURAL BACKGROUND The specific facts of Petitioner's crimes are not relevant to the instant motion to dismiss. However, the following procedural facts are

obtained from the state appellate docket1 and exhibits submitted by Petitioner. On July 20, 2007, a jury in the California Superior Court for the County of San Diego convicted Petitioner of one count of inflicting corporal injury on a spouse or cohabitant (Cal. Penal Code § 273.5(a)). Pet., Ex. E at 107. in state prison. A. Petitioner was sentenced to a term of seven years

Id.

PENDING DIRECT REVIEW On July 31, 2007, Petitioner filed a notice of appeal with the

California Court of Appeal, Fourth Appellate District, Division One. See http://appellatecases.courtinfo.ca.gov (last visited July 9, 2009). This Court's review of the electronic database for the California court system indicates that on May 15, 2009, the California Court of Appeal

In his supporting documents, Petitioner references an ongoing appeal stemming from his criminal conviction but fails to provide an appellate case number. Pet. at 6. The case number in the state's electronic database matches the case number on appellate documents submitted by Respondent as Exhibit B. See Resp't Mem., Ex. B.
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affirmed all aspects of the judgment against Petitioner, except for the calculation of the presentence custodial credits. See id. On June 19,

2009, Petitioner submitted a petition for review to the California Supreme Court. B. Id. The petition is pending. Id.

FEDERAL COLLATERAL REVIEW On November 16, 2007, while his direct appeal in the state court

was pending, Petitioner filed a petition for Writ of Habeas Corpus in the United States District Court for the Southern District of California ("the First Petition"). Case No. 07cv2197-BTM(NLS), Doc No. 1. The

First Petition asserted three claims, which are identical to the first three claims asserted in the instant petition. Id. On June 3, 2008,

the Honorable Barry Ted Moskowitz dismissed the First Petition pursuant to the abstention doctrine announced in Younger v. Harris, 401 U.S. 37 (1970). See id., Doc. No. 13. In the dismissal order, the Court

explicitly advised Petitioner that the dismissal was "without prejudice to Petitioner to present his claims in a separate federal habeas petition filed after the conclusion of his direct appeal." (emphasis added). On September 26, 2008, Petitioner erroneously filed the instant habeas petition in the United States Court of Appeals for the Ninth Circuit. Pet. at 1. Therefore, the Clerk transferred the Petition and Id. The instant Petition is Id. at 5

all pending motions to this Court.2

identical to the first in all respects, except that Petitioner adds a fourth claim challenging the outcome of his first federal petition. Pet. at 19.
An application for a writ of habeas corpus must be made to the district court. See Fed. R. App. P. 22(a); see also 28 U.S.C. § 2241(b). If a petition for writ of habeas corpus is filed in the court of appeals, "the application must be transferred to the appropriate district court." Fed. R. App. P. 22(a).
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Respondent moved to dismiss on April 9, 2009, advancing the same Younger abstention doctrine argument applied to the first petition. Resp't Mem. at 1-2. Petitioner did not file an opposition, nor has he

requested an extension of time to do so.3 DISCUSSION SCOPE OF REVIEW Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claims: The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). B. CLAIMS ONE, TWO, AND THREE As stated by Judge Moskowitz in the first order, "[t]he Ninth Circuit has held that district courts should abstain under Younger from adjudicating federal constitutional claims when a federal habeas

petitioner's state appeal is pending." Case No. 07cv2197-BTM(NLS), Doc. No. 13 at 3 (citing Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983)); see also Younger, 401 U.S. at 37 (holding that federal courts may not interfere with ongoing state criminal proceedings absent

extraordinary circumstances).

Judge Moskowitz then set forth the

appropriate test for Younger abstention and determined that the relevant facts required that the federal court abstain from addressing

Petitioner's asserted habeas claims until the state court completes its

It is within the Court's discretion to grant the motion to dismiss as unopposed under Local Rule 7.1(f)(3)(c)of the Southern District of California; however, the Court has reviewed the motion on its merits.

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review of Petitioner's direct appeal. Case No. 07cv2197-BTM(NLS), Doc. No. 13 at 3-5. Judge Moskowitz' analysis and conclusion are equally applicable to Petitioner's current habeas petition. The facts, arguments, and

allegations asserted in claims one, two, and three of the instant petition are identical to those set forth in the First Petition dismissed by Judge Moskowitz. Pet. at 10-20. Compare id., Doc. No. 1 at 8-17, with

In fact, Petitioner's contentions are essentially, if See id. Furthermore, Petitioner's

not completely, word-for-word.

procedural situation remains unchanged. The state appellate proceeding for the conviction from which Petitioner seeks relief is ongoing at this time. See http://appellatecases.courtinfo.ca.gov (last visited July 9, 2009). Accordingly, and for the reasons stated by Judge Moskowitz in

the Order of June 3, 2008, this Court RECOMMENDS that claims one, two, and three be DISMISSED. C. CLAIM FOUR In his fourth and final ground for relief, Petitioner's entire argument is as follows: The Petitioner is presently illegally incarcerated due to the United States District Court [sic] failure to review discrimination in prosecution. The State of California broke there [sic] own laws in prosecuting the Petitioner. The District Court states there is an abstension [sic] doctrine due to the Petitioner having an appeal. The appeal does not cover or address the discrimination in prosecution, thus there is no abstension [sic] doctrine on the issue presented because they were presented to the state at all levels. Pet. at 19. Petitioner does not allege a constitutional violation, cite to federal authority or otherwise explain why this claim is cognizable At most, this claim may be interpreted as an

on federal habeas review.

attempt to challenge the district court's dismissal of Petitioner's

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first habeas petition.

If such was Petitioner's intent, this Court

lacks jurisdiction to consider such a challenge.4 To ensure a federal court's review of his claims for relief, a habeas petitioner must allege he is in custody "in violation of the Constitution or the laws or treaties of the United States," see 28 U.S.C. § 2254(a), by citing "provisions of the federal Constitution or . . . either federal or state case law that engages in a federal constitutional analysis." Fields v. Waddington, 401 F.3d 1018, 1021

(9th Cir. 2005) (explaining requirements for exhaustion purposes); see also Estelle v McGuire, 502 U.S. 62, 67 (1991) ("In conducting habeas review, a federal court is limited to deciding whether a conviction violated [federal law]."). Petitioner has not done so. This Court,

therefore, RECOMMENDS that Petitioner's fourth claim for relief be DISMISSED for failure to allege a federal claim. CONCLUSION AND RECOMMENDATION Because Petitioner's first three claims for relief fully meet the requirements of the Younger abstention doctrine, and because

Petitioner's fourth claim for relief is not cognizable on federal habeas review, this Court RECOMMENDS that Respondent's Motion to Dismiss be GRANTED without prejudice to Petitioner presenting his claims in a new federal habeas petition filed after the conclusion of his direct appeal.

The fact that Petitioner originally filed this Petition with the United States Court of Appeals for the Ninth Circuit suggests this possibility. However, a state prisoner may not appeal the denial of a section 2254 habeas petition unless he obtains a certificate of appealability from a district or circuit judge. 28 U.S.C. § 2253 (c)(1)(A); see also United States v. Asrar, 116 F.3d 1268, 1269-70 (9th Cir. 1997) (holding that district courts retain authority to issue certificates of appealability under AEDPA). It appears that Petitioner attempted to obtain a certificate of appealability following the denial of the first petition, but his application was not timely. See Case No. 07cv2197-BTM(NLS), Doc. No. 17.

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For the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court an Order: (2) (1) approving and adopting Motion this to Report Dismiss; and and

Recommendation;

granting

Respondent's

(3) dismissing this action in its entirety without prejudice. IT IS ORDERED that no later than July 24, 2009, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation." IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than August 7, 2009. The parties are advised that failure to file objections within

the specified time may waive the right to raise those objections on appeal of the Court's order. (9th Cir. 1998). IT IS SO ORDERED. See Turner v. Duncan, 158 F.3d 449, 455

DATED:

July 9, 2009

BARBARA L. MAJOR United States Magistrate Judge

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