Contreras v. Montgomery

Filing 52

REPORT AND RECOMMENDATION re 46 MOTION to Dismiss First Amended Petition for Writ of Habeas Corpus filed by Warren L. Montgomery Objections to R&R due by 2/17/2023 Replies due by 3/3/2023. Signed by Magistrate Judge Barbara Lynn Major on 1/19/2023.(All non-registered users served via U.S. Mail Service)(sjt) Modified to correct Judge on 1/19/2023 (sjt).

Case 3:16-cv-02813-BTM-BLM Document 52 Filed 01/19/23 PageID.1431 Page 1 of 13

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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REPORT AND RECOMMENDATION FOR
ORDER GRANTING RESPONDENT’S
MOTION TO DISMISS FIRST AMENDED
PETION FOR WRIT OF HABEAS
CORPUS

Petitioner,

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v.

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WARREN L. MONTGOMERY,

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Case No.: 16cv2813-BTM(BLM)

ANTHONY L. CONTRERAS,

Respondent.

[ECF NO. 46]

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This Report and Recommendation is submitted to United States District Court Judge Barry

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T. Moskowitz pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(d) and HC.2 of the United

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States District Court for the Southern District of California. On June 27, 2022, Petitioner Anthony

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Contreras (“Petitioner”), a state prisoner who is proceeding pro se and in forma pauperis, filed

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his First Amended Petition for Writ of Habeas Corpus (“Amended Petition”) pursuant to 28 U.S.C.

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§ 2254 challenging his San Diego County Superior Court convictions of attempted premeditated

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murder, with gang and firearm enhancements, and shooting at an occupied vehicle, with gang

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and firearm enhancements. ECF No. 42. Respondent Warren Montgomery (“Respondent”) filed

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a Motion to Dismiss First Amended Petition for Writ of Habeas Corpus (“Motion”) and lodgments

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on August 24, 2022. ECF Nos. 46, 47. Petitioner filed an Opposition to the Motion to Dismiss

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the First Amended Petition for Writ of Habeas Corpus (“Oppo.”) on October 6, 2022. ECF No.
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49 The Court has reviewed the Amended Petition, Motion to Dismiss, Opposition, lodgments,

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and all supporting documents submitted by the parties. For the reasons discussed below, the

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Court RECOMMENDS Respondent’s motion to dismiss be GRANTED.

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I.

SUMMARY OF PROCEEDINGS

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Petitioner commenced this action when he filed his Petition for Writ of Habeas Corpus

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(“Petition”) on November 14, 2016. ECF No. 1. The Petition was subject to dismissal under

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Rose v. Lundy, 455 U.S. 509, 522 (1982) because it included both exhausted and unexhausted

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claims. ECF Nos. 1 & 2. Petitioner requested and was granted an unopposed Motion for Stay

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and Abeyance under Rhines v. Weber, 544 U.S. 269 (2005). ECF Nos. 5 & 10. The case was

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then stayed from August 23, 2017 until July 23, 2019 to allow Petitioner time to exhaust his

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state court remedies. ECF No. 10. On July 18, 2019, in a status report, Petitioner informed the

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Court that he had exhausted his state court remedies. ECF No. 16. On July 23, 2019, the Court

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issued an Order Requiring Response to Petition. ECF No. 17.

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On August 21, 2019, Respondent filed a Motion to Dismiss Petition for Writ of Habeas

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Corpus, arguing the Petition should be dismissed for failure to exhaust state court remedies.

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ECF No. 18. Petitioner filed his Opposition thereto on October 25, 2019 and requested a second

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stay under Rhines to allow for time to exhaust his unexhausted claims. ECF No. 22.

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Magistrate Judge Crawford issued a Report and Recommendation to deny Respondent’s

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motion and grant Petitioner a limited, conditional stay under Rhines, so that Petitioner could

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exhaust his unexhausted claims. ECF No. 23. Alternatively, Judge Crawford recommended that

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the District Court give Petitioner the option to abandon his unexhausted claims and file an

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Amended Federal Petition that included only exhausted claims. Id. The District Court adopted

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Judge Crawford’s findings and conclusions, denied Respondent’s motion to dismiss, and issued

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a second stay and abeyance order. ECF No. 25. The District Court allowed Petitioner to file a

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new petition in the California Supreme Court and an amended federal petition that only included

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exhausted claims. Id. at 2-3. Petitioner also was given the option to abandon the unexhausted

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claims and proceed with his exhausted claims by filing an amended petition. Id. at 3.

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After several extensions of time, Petitioner filed a new petition with the California
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Supreme Court on February 16, 2022. ECF No. 41; Lodgment 13. The California Supreme Court

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denied the new petition on May 11, 2022. Lodgment 14. Petitioner then filed his Amended

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Petition on June 27, 2022. ECF No. 42.

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That same day, the Court lifted the stay in this action and directed Respondent to file a
response to the Petition. ECF No. 43.

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Meanwhile, on July 23, 2019, Petitioner filed a resentencing petition pursuant to Cal.

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Penal Code § 1170.95, now renumbered as Cal. Penal Code § 1172.6, 1 in San Diego County

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Superior Court. Lodgment 15. San Diego County Superior Court determined Petitioner was

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ineligible for relief under Section 1172.6 because, at that time, the remedy sought was

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unavailable to individuals convicted of attempted murder. See Lodgment 16 at 5. On appeal,

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the California Court of Appeal, affirmed the denial. Id. While Petitioner’s appeal was still

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pending, the California Legislature enacted Senate Bill No. 775, which allowed section 1172.6

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remedies to be made available to those convicted of attempted murder. Id. In response, the

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California Supreme Court remanded the case back to the California Court of Appeal for

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reconsideration in light of Senate Bill No. 775. Id. On February 28, 2022, the California Court

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of Appeal reversed the order denying Petitioner’s Section 1172.6 petition and remanded the

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matter to the trial court. Id. at 8. On remand, the Court of Appeal instructed the trial court “to

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issue an order to show cause and conduct an evidentiary hearing as required by [Section

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1172.6].” Id.

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On July 12, 2022, the San Diego County Superior Court issued an order setting a status

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conference and order to show cause for August 4, 2022. Lodgment 17. The hearing initially

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was continued to October 7, 2022, and then to January 9, 2023. Lodgment 18; ECF No. 51.

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While it appears the hearing did not go forward on January 9, 2023, the Court does not know

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the current status of the state court proceeding.

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On August 24, 2022, Respondent filed a motion to dismiss the Amended Petition on the

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Effective June 30, 2022, section 1170.95 was renumbered and can now be found at section
1172.6. Despite the pleadings citing to section 1170.95, the Court will cite to section 1172.6.

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ground that the court should abstain from interfering with the pending state court proceeding

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under Younger v. Harris, 401 U.S. 37 (1971). ECF No. 46. On October 6, 2022, Petitioner filed

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an opposition to the motion. ECF No. 49. Respondent did not file a reply. See Docket.

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II.

DISCUSSION

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Respondent moves the Court to dismiss Petitioner’s Amended Petition based on the

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abstention doctrine outlined in Younger v. Harris, 401 U.S. 37 (1971).

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Respondent argues that abstention is appropriate in light of Petitioner’s pending section 1172.6

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hearing. Motion at 8. Conversely, Petitioner requests that the Court deny Respondent’s motion

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and consider his Amended Petition on the merits. Oppo. at 2. Petitioner argues that the Younger

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Motion at 5-6.

requirements are not satisfied here despite the pending section 1172.6 hearing. Id. at 1.

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A. Senate Bill 775 and California Penal Code Section 1172.6

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Senate Bill 775, which became effective January 1, 2022, amended the formerly titled

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California Penal Code section 1170.95 to provide a process by which an individual previously

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convicted of attempted murder under the natural and probable consequences doctrine can

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petition for resentencing. Cal. Penal Code § 1172.6. The process requires the individual to file

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a petition for resentencing and if the petition contains all the required information, the trial court

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is required to appoint counsel to represent the petitioner, if requested. People v. Lewis, 11 Cal.

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5th 952, 962-963 (2021); Cal. Penal Code § 1172.6(b)(1)(A), (3). The prosecutor must then

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file a response to the petition, the petitioner may file a reply, and the trial court must hold a

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hearing to determine whether the petitioner has made a prima facie showing that he is entitled

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to relief. Cal. Penal Code § 1172.6(c). Where the court finds the petitioner made a prima facie

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showing, the trial court must then issue an order to show cause and hold an evidentiary hearing

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to determine whether to vacate the attempted murder conviction and resentence the petitioner

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on any remaining counts. Id. § 1172.6(d)(1). At the hearing, the court may consider evidence

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“previously admitted at any prior hearing or trial that is admissible under current law,” including

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witness testimony. Id. § 1172.6(d)(3). The petitioner and prosecutor also can offer new or

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additional evidence. Id.

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beyond a reasonable doubt, that the petitioner is guilty of . . . attempted murder[.]” Id. If the

The burden of proof remains with the prosecution, who has “to prove,

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prosecution fails to prove—beyond a reasonable doubt—that the petitioner is guilty of attempted

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murder under California law as amended by changes to California Penal Code sections 188 or

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189, the prior conviction, and any allegations and enhancements attached to the conviction

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“shall be vacated and the petitioner shall be resentenced on the remaining charges.” Cal. Penal

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Code § 1172.6(d)(3).

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B. Abstention Under Younger

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In Younger, the Supreme Court made clear that, absent extraordinary circumstances, a

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federal court must not intervene in a pending state criminal proceeding. Younger, 401 U.S. at

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43-46. Abstention under Younger is appropriate when: “(1) there is an ongoing state judicial

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proceeding, (2) the proceeding implicates important state interests, (3) there is an adequate

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opportunity in the state proceeding to raise constitutional challenges, and (4) the requested

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relief seeks to enjoin or has the practical effect of enjoining the ongoing state judicial

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proceeding.” 2 Page v. King, 932 F.3d 898, 901-02 (9th Cir. 2019) (quoting Arevalo v. Hennessy,

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882 F.3d 763, 765 (9th Cir. 2018) (alterations and internal quotations omitted)).

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As further discussed below, the Court finds that the Younger requirements are satisfied,
and abstention is appropriate.

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1. The Section 1172.6 Petition Hearing is an Ongoing State Proceeding

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Respondent argues that that the section 1172.6 hearing is an ongoing state judicial

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proceeding because Petitioner filed his section 1172.6 petition in state court prior to “any

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proceedings of substance on the merits [took] place in [] federal court.”

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Respondent indicates that when Petitioner filed his section 1172.6 petition, Respondent had only

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filed a non-opposition to Petitioner’s request for a stay, not a motion to dismiss or an answer.

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Id.

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Motion at 9.

In his opposition, Petitioner claims that the section 1172.6 hearing does not constitute

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The fourth factor—enjoinment—is a requirement that the Ninth Circuit identified and added to
the Younger abstention analysis. ReadyLink Healthcare, Inc. v State Comp. Ins. Fund., 754 F.3d
754, 758 (9th Cir. 2014); San Jose Silicon Valley Chamber of Commerce Political Action Comm.
V. City of San Jose, 546 F.3d 1087, 1092 (9th Cir. 2008).
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an ongoing state judicial proceeding because in his federal petition, Petitioner is challenging his

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entire conviction to “prov[e] [his] 100% factual innocence” and the state hearing only applies

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to his attempted murder conviction. Oppo at 1.

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proceeding is only “a resentencing process.” Id. at 2.

Further, Petitioner argues that the state

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Younger requires that a state court proceeding be ongoing. Indeed, the “critical date”

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for determining whether a state proceeding is ongoing is “the date the federal action is filed.”

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Gilbert v. Albright, 381 F.3d 965, 969 n.4 (9th Cir. 2004) (en banc) (citation omitted); Beltran

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v. State of Cal., 871 F.2d 777, 782 (9th Cir. 1988). The Ninth Circuit has explained that “[s]tate

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proceedings are considered ‘ongoing’ if they commence ‘before any proceedings of substance

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on the merits have taken place in federal court.”’ Phillips v. Neuchsmid, 2019 WL 6312573, at

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*1 (C.D. Cal. Oct. 18, 2019) (citing Nationwide Biweekly Admin., Inc. v. Owen, 873 F.3d 716,

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728 (9th Cir. 2017)).

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Here, Petitioner commenced the federal habeas process on November 14, 2016, but the

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matter was subsequently subject to several stays. ECF No. 1; see also Docket. The Amended

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Petition, the petition the Court would be considering, was not filed until June 27, 2022. ECF No.

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42. Petitioner filed his 1172.6 petition in state court on July 23, 2019. Lodgment 15. At the

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time of filing his Amended Petition, Petitioner acknowledged that there was a pending state

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court hearing for his section 1172.6 petition. Amended Petition at 26. Hence, the state court

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proceeding was ongoing at the time Petitioner filed the Amended Petition, satisfying the first

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Younger requirement. See Lesopravsky v. Warden, 2018 WL 2085333, at *3-4 (C.D. Cal. May 3,

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2018) (state proceedings were ongoing for purposes of abstention under Younger where

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petitioner filed a petition for resentencing in state court after filing original federal habeas

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petition but before filing first amended petition).

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Even if the Court were to consider the “critical date” to be November 14, 2016, the state

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court proceeding was still ongoing, as no proceeding of substance on the merits had taken place

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in federal court prior to the filing of the section 1172.6 petition in state court. Before Respondent

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appeared in this matter, Petitioner filed a motion to stay the federal court proceedings and this

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matter was stayed from August 23, 2017 to July 23, 2019. See ECF Nos. 5, 10 & 17. Respondent
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did not file the first motion to dismiss until August 21, 2019, which was after Petitioner filed his

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section 1172.6 petition. See ECF No. 18. Further, the result of Respondent’s motion to dismiss

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was another stay. ECF Nos. 23 & 25. Thus, no proceedings of substance on the merits had

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occurred in federal court when Petitioner filed his section 1172.6 petition 3; thus, satisfying the

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first Younger requirement. See Nichols v. Brown, 945 F. Supp. 2d 1079, 1095 (C.D. Cal. 2013)

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(state proceedings initiated after federal filing were ongoing where the federal case had “not

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progressed beyond the pleading state” and defendants had not filed answer); see also Johnson

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v. Sullivan, 2019 WL 1590907, at *2 (C.D. Cal. Feb. 25, 2019) (state proceedings ongoing where

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petitioner’s appeal of resentence was pending, as “judgment not yet final”), report and

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recommendation adopted, 2019 WL 1585200 (C.D. Cal Apr. 11, 2019).

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With regard to Petitioner’s argument that the Amended Petition should not be dismissed

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on abstention grounds because the section 1172.6 hearing is only a “resentencing process,” and

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the federal petition is more comprehensive, including alleging Petitioner’s actual innocence, the

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Court finds that the stated differences do not impact the determination that the state court

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proceeding is ongoing. See, e.g., Pellecer v. Robertson, 2021 WL 1949394, at *3-*4 (C.D. Cal.

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Mar. 12, 2021) (finding the first Younger requirement satisfied, and ultimately abstention

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appropriate, where petitioner argued that the section 1172.6 hearing was limited to sentencing

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and the federal habeas petition challenged the constitutionality of his conviction), report and

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recommendation adopted by 2021 WL 1947235, at *1 (C.D. Cal May 14, 2021). If Petitioner is

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successful in having his second-degree attempted murder conviction vacated, some, if not all,

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of his federal claims challenging the constitutionality of that conviction may be moot.

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Alternatively, if Petitioner is not successful and the trial court denies his resentencing petition,

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Petitioner may appeal the decision to the California Court of Appeal, further prolonging the state

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court proceedings. Given the ongoing state court proceedings involving the section 1172.6

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resentencing petition, the Court finds that the first Younger requirement is met.

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The California Supreme Court had remanded the section 1172.6 petition back to the trial court
on February 28, 2022, which was before Petitioner filed the Amended Petition. See Lodgment
16; see also ECF No. 42.
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2. The Pending Section 1172.6 Petition Hearing Implicates State Interest

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Respondent argues that the State of California has an important interest in “protecting

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the integrity of its criminal proceedings” as well as “correcting violations of defendant’s rights.”

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Motion at 6, 7. In contrast, Petitioner indicates that the proceeding does not implicate state

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interests because it is a “completely different proceeding[].” Oppo at 2. Petitioner does not

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elaborate on how the section 1172.6 hearing is a “completely different proceeding.” See id.

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Repeatedly, courts have determined that criminal proceedings implicate state interests.

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See Kelly v. Robinson, 479 U.S. 36, 49 (1986) (“[T]he State’s interest in administering their

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criminal justice system free from federal interference is one of the most powerful of the

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considerations that should influence a court considering equitable types of relief”) (citing

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Younger, 401 U.S. at 44-45); Lammers v. Hutchins, 2019 WL 1771658, at *2 (C.D. Cal. Mar. 5,

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2019) (“Plainly, state criminal proceedings implicate important state interests.”).

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specifically, “resentencing proceedings implicate an important state interest in enforcing criminal

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laws without federal interference.” Timberlake v. Santoro, 2021 WL 1691833, at *2 (E.D. Cal.

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Apr. 29, 2021) (citing Kelly, 479 U.S. at 49).

More

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Without question, the pending section 1172.6 hearing implicates state interests because

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it is both criminal in nature and, as Petitioner states, a resentencing proceeding. Further, the

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California appellate courts remanded this case to the state trial court to consider a newly enacted

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state law—SB 775. Lodgment 16 at 10 (“Because [it] did not have the benefit of the statutory

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changes created by Senate Bill 775 when it ruled on [Petitioner’s] petition, and because the

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Attorney General concedes [Petitioner] made a prima facie showing that he was convicted of

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attempted murder under the natural and probable consequences doctrine[.]”). Lodgment 16 at

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10. It is up to the state court—not the federal court—to determine how the changes to its laws

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affect the rights of defendants. Roberts v. Dicarlo, 296 F. Supp. 2d 1182, 1185 (C.D. Cal. Dec.

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10, 2003) (“[T]he state has an important interest in passing upon and correcting violations of a

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defendant’s rights.”).

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Petitioner states that “[t]here is no implication of important state interests as [the section

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1172.6 hearing is a] completely different proceeding” [Oppo. at 2] but does not provide any
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analysis or argument as to why the proceeding is different or why state interests are not

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implicated. To the extent Petitioner’s argument is that the resentencing is not an important

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state interest because the federal petition is more comprehensive, the Court disagrees.

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Repeatedly, courts in the Ninth Circuit have determined resentencing proceedings implicate state

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interests and have abstained under Younger. See Lammers, 2019 WL 1771658, at *2-3 (court

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finding that Younger abstention applied where the state petitioner’s resentencing proceedings

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were pending in state court); Lesopravoksy, 2018 WL 2085333, at *3-4 (Younger abstention

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applied where petitioner’s appeal after resentencing was pending); McCaw v. People, 2016 WL

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44487824, at *1-2 (C.D. Cal. Aug. 25, 2016) (Younger abstention warranted where sentencing

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proceedings on remand were pending). The Court makes the same determination here and

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finds the second Younger requirement is satisfied.

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3. Petitioner Has Adequate Opportunity to Raise Federal Constitutional Claims

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Respondent indicates that Petitioner had the opportunity to raise constitutional challenges

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in state proceedings and in fact did so. Motion at 7. Petitioner responds that there is no

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opportunity for him to raise his constitutional challenges because the state court judge handling

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the section 1172.6 petition does not have the authority to consider constitutional challenges

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because it is not a habeas proceeding. Oppo. at 2. Petitioner reiterates that the proceeding is

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only a “resentencing process created to allow people convicted under an illegal jury instruction

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of a lesser sentence but that does not allow [Petitioner to prove his] 100% factual

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innocen[ce][.]” Id. Petitioner maintains that the only appropriate venue is this Court. Id.

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“A federal court should assume that state procedures will afford an adequate remedy, in

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the absence of unambiguous authority to the contrary.” See Pennzoil Co. v. Texaco, Inc., 481

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U.S. 1, 15 (1987); see also Middlesex Cnty. Ethics Comm., v. Garden State Bar Ass’n, 457 U.S.

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423, 432 (1982) (“Where vital state interests are involved, a federal court should abstain ‘unless

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state law clearly bars the interposition of the constitutional claims.’”) (citation omitted). Relevant

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here, the third Younger factor “requires only the absence of ‘procedural bars’ to raising a federal

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claim in the state proceedings.” Commc’ns Telesystems Int’l v. Cal. Pub. Util. Comm’n, 196 F3d

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1011, 1020 (9th Cir. 1999) (citations omitted).
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Here, Petitioner has had opportunity to raise constitutional challenges in various state

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court proceedings.

Indeed, the record indicates, and Petitioner’s own Amended Petition

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acknowledges, that he raised many of the same constitutional grounds he seeks to raise in

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federal court through direct appeal and habeas petitions in the San Diego County Superior Court,

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California Court of Appeal, and California Supreme Court. Amended Petition at 4-6; see also

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Lodgments 1, 4, 6, 12. Courts in the Ninth Circuit have held this is sufficient to satisfy the third

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Younger requirement. See Spivey v. McDowell, 2016 WL 8198332, at *3 (C.D. Cal. Dec. 15,

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2016) (“It does not matter that after his conviction was affirmed, petitioner was unable to raise

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these specific constitutional claims. Rather, the third Younger requirement is satisfied merely by

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the fact that he could have raised the present claims on direct appeal before his conviction was

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affirmed.”); see also Pellecer, 2021 WL 1949394, at *4 (“That such petitions have been denied

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does not alter the fact that [petitioner] has had the opportunity to raise those [constitutional

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claims].”); Lammers, 2019 WL 1771658, at *2 (“There is no suggestion that Petitioner’s prior

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state appeal did not provide Petitioner with an adequate opportunity to raise the claim alleged

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in the instant Petition, nor is there any reason to believe that future state appellate and/or post-

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conviction proceedings following Petitioner’s resentencing will not provide him with an adequate

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opportunity to raise any additional habeas claims.”).

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Further, nothing in California Penal Code section 1172.6 indicates Petitioner would not be

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able to raise constitutional arguments. In fact, the statute explicitly states that “[t]his section

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does not diminish or abrogate any rights or remedies otherwise available to the petitioner.” Cal.

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Penal Code § 1172.6(e). Moreover, Petitioner is permitted to offer new or additional evidence,

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and the burden of proof remains “on the prosecution to prove, beyond a reasonable doubt, that

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the petitioner is guilty of . . . attempted murder under California law[.]” Id. § 1172.6(d)(3).

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Accordingly, the Court finds that the third Younger requirement is satisfied.

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4. Federal Intervention Would Have the Practical Effect of Enjoining the State
Proceeding

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Respondent indicates the fourth Younger factor is met because the relief sought—"release

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from custody or new trial”—interferes with the ongoing state court proceeding because
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Petitioner “seeks vacation of his attempted murder conviction and resentencing on the remaining

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charge and enhancements[.]” Motion at 7. Petitioner did not discuss the fourth factor in his

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opposition. See generally Oppo.

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Under Younger, federal courts cannot stay or enjoin pending state criminal proceedings.

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Sinsun v. Pickett, 2022 WL 696369, at *2 (C.D. Cal. Jan. 11, 2022), report and recommendation

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adopted 2022 WL 686707, at *1 (C.D. Cal. Mar. 7, 2022) (citing Mann v. Jett, 781 F.2d 1448,

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1449 (9th Cir. 1986)). Courts in the Ninth Circuit have found the fourth requirement is met

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where a habeas petitioner’s section 1172.6 petition to vacate or for resentencing is pending.

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See, e.g., Sinsun, 2022 WL 696369, at *3 (recommending dismissal of federal habeas petition

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due to pending appeal of section 1172.6 determination); Pellecer, 2021 WL 1949349, at *4

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(same); Gonzales v. Pfeffer, 2020 WL 5520597, at *3-*4 (C.D. Cal. Aug. 6, 2020) (same), report

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and recommendation adopted 2020 WL 5518599 (C.D. Cal. Sept. 13, 2020); Sauceda v.

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Sherman, 2020 WL 2510639, at *4 (C.D. Cal. Feb. 7, 2020) (same), report and recommendation

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adopted 2020 WL 1433678 (C.D. Cal. Mar. 22, 2020).

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Here, Petitioner raises several claims related to his second-degree attempted murder

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conviction and the related enhancements. See Amended Petition. If Petitioner were to obtain

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federal habeas relief (e.g., release from custody, a new trial, etc.) while the state proceeding

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remains ongoing, it would have the practical effect of enjoining the section 1172.6 hearing,

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where he has the potential to raise some of the same claims in the Amended Petition and have

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his second-degree murder conviction vacated. As previously noted, the outcome at the section

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1172.6 has the potential to render this federal matter moot, in whole or part, or further prolong

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the state court proceedings, making federal intervention improper. Thus, any relief the Court

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could provide at this time would threaten interference in the ongoing state criminal proceeding.

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See Orozco v. Montgomery, 2020 WL 5868136, at * 4 (C.D. Cal. Aug. 6, 2020) (finding that

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granting Petitioner’s relief “would unnecessarily interfere” with the pending section 1170.95

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proceeding); see also Anthony v. Pollard, 2021 WL 4951464, at *3 (N.D. Cal. Oct. 25, 2021)

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(“the practical effect of granting federal habeas relief in this action would interfere with the

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ongoing [section 1172.6] proceedings in that it would imply the invalidity of the conviction and
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require this Court to make findings about whether the underlying trial violated constitutional

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rights.”); Phillips, 2019 WL 6312573, at *2 (C.D. Cal. Oct. 18, 2019) (“courts implicitly find that

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granting federal habeas corpus relief would have the practical effect of enjoining or interfering

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with the ongoing state judicial proceeding, even where the state proceeding is limited to

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sentencing.” ) (collecting cases).

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Accordingly, in light of Petitioner’s pending section 1172.6 hearing, the Court finds the
fourth requirement met.

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5. No Extraordinary Circumstances Exists Warranting Federal Intervention

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Although Petitioner does not explicitly indicate that there are extraordinary

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circumstances, he does indicate that there has been a showing of bad faith on the part of the

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Attorney General. Oppo. at 2. Petitioner alleges that “the state judge’s [sic] have chosen to be

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bias and interpret convincing, clear evidence in favor of [P]etitioner’s factual innocence as

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insignificant, when it clearly and completely undermines the prosecutions whole case.” Id.

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Petitioner specifically points to the use of a particular witness at trial, whom Petitioner alleges is

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an admitted liar, and the fact that Petitioner claims there is a new witness willing to offer

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favorable testimony for Petitioner. Id.

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Since the Younger factors are satisfied here, abstention applies to the claims in the

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Amended Petition absent Petitioner demonstrating that “extraordinary circumstances” warrant

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federal intervention.

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

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conviction and perhaps in other extraordinary circumstances where irreparable injury can be

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shown is federal injunctive relief against pending states prosecutions appropriate.” Perez v.

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Ledesma, 401 U.S. 82, 85 (1971); see also Carden v. Montana, 626 F.2d 82, 83-84 (9th Cir.

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1980).

Younger, 401 U.S. at 53.

“Only in cases of proven harassment or

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Petitioner has not provided evidence to support his contention that there has been a

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showing of bad faith, harassment, or bias on the part of the prosecution, attorney general, or

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state court judges, and nothing in the record suggests the same. Petitioner only points to the

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credibility of a trial witness and an alleged new witness. Based on the Court’s understanding of
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Case 3:16-cv-02813-BTM-BLM Document 52 Filed 01/19/23 PageID.1443 Page 13 of 13

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section 1172.6, as noted, Petitioner can present new or additional evidence at his section 1172.6

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hearing, so there is the potential for him to raise issues with trial witnesses or offer his new

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witness. Thus, the Court finds there are no extraordinary circumstances present that warrant

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federal intervention.

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Accordingly, all the requirements for abstention under Younger are present. The Court

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should therefore grant Respondent’s motion to dismiss without prejudice and abstain from

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interfering with the ongoing state resentencing proceeding until it has concluded.

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III.

CONCLUSION AND RECOMMENDATION

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For the foregoing reasons, IT IS HEREBY RECOMMENDED that the District Judge issue

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and Order: (1) approving and adopting this Report and Recommendation; (2) granting

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Respondent’s Motion to Dismiss [ECF No. 46]; and (3) directing that Judgment be entered

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DENYING the Amended Petition and DISMISSING this action without prejudice.

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IT IS HEREBY ORDERED that no later than February 17, 2023, any party to this

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action may file written objections with this Court and serve a copy on all parties. The document

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should be captioned “Objections to Report and Recommendation.”

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IT IS FURTHERED ORDERED that any reply to the objections shall be filed with the

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Court and served on all parties no later than March 3, 2023. The parties are advised that

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failure to file objections within the specified time may waive the right to raise those objections

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on appeal of the court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998).

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IT IS SO ORDERED.
Dated: 1/19/2023

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