Schmitt v. Unknown

Filing 7

ORDER: (1) Granting 6 Motion to Proceed in Forma Pauperis; and (2) Dismissing Case without Prejudice. Signed by Judge Michael M. Anello on 5/16/2017. (All non-registered users served via U.S. Mail Service)(ag) (sjt).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 17cv0730 MMA (JMA) MICHAEL SCHMITT, Petitioner, 12 13 v. 14 ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; and (2) DISMISSING CASE WITHOUT PREJUDICE JEFFREY BEARD, et al., Respondents. 15 16 17 On April 10, 2017, Petitioner, a state prisoner proceeding pro se, filed a Petition 18 for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. The Court dismissed the action 19 without prejudice on April 13, 2017 because Petitioner had failed to satisfy the filing fee 20 requirement and because Petitioner challenged his state court conviction, which must be 21 done via 28 U.S.C. § 2254. 22 23 24 25 On May 10, 2017, Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 together with a motion to proceed in forma pauperis. MOTION TO PROCEED IN FORMA PAUPERIS Petitioner has $0.80 on account at the California correctional institution in which 26 he is presently confined. Petitioner cannot afford the $5.00 filing fee. Thus, the Court 27 GRANTS Petitioner’s application to proceed in forma pauperis, and allows Petitioner to 28 prosecute the above-referenced action without being required to prepay fees or costs and 1 17cv0730 MMA (JMA) 1 without being required to post security. The Clerk of the Court shall file the Petition for 2 Writ of Habeas Corpus without prepayment of the filing fee. 3 4 ABSTENSION The Petition must be dismissed because it is clear that this Court is barred from 5 consideration of his claims by the abstention doctrine announced in Younger v. Harris, 6 401 U.S. 37 (1971). Under Younger, federal courts may not interfere with ongoing state 7 criminal proceedings absent extraordinary circumstances. Id. at 45-46; see Middlesex 8 County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 431 (1982) (Younger 9 “espouse[d] a strong federal policy against federal-court interference with pending state 10 judicial proceedings.”) These concerns are particularly important in the habeas context 11 where a state prisoner’s conviction may be reversed on appeal, thereby rendering the 12 federal issue moot. Sherwood v. Tompkins, 716 F.2d 632, 634 (9th Cir. 1983). 13 Absent extraordinary circumstances, abstention under Younger is required when: 14 (1) state judicial proceedings are ongoing; (2) the state proceedings involve important 15 state interests; and (3) the state proceedings afford an adequate opportunity to raise the 16 federal issue. Columbia Basin Apartment Ass’n v. City of Pasco, 268 F.3d 791, 799 (9th 17 Cir. 2001). All three of these criteria are satisfied here. At the time Petitioner filed the 18 instant Petition, he states that he has yet to receive a decision on his direct appeal to the 19 California Court of Appeal. (See Pet. at 2.) Thus Petitioner’s criminal case is still 20 ongoing in the state courts. Further, there is no question that the state criminal 21 proceedings involve important state interests. 22 Finally, Petitioner has failed to show that he has not been afforded an adequate 23 opportunity to raise the federal issues on direct appeal. Petitioner offers nothing to 24 support a contention that the state courts do not provide him an adequate opportunity to 25 raise his claims, and this Court specifically rejects such an argument. Indeed, Petitioner’s 26 claims of ineffective assistance of counsel, and sentencing error under Blakely v. 27 Washington, 542 U.S. 296 (2004) are the just type of claims that the state courts provide 28 an opportunity to raise on direct appeal. Abstention is therefore required. See Huffman v. 2 17cv0730 MMA (JMA) 1 Pursue, Ltd., 420 U.S. 592, 608 (1975) (Younger applies to state appellate proceedings as 2 well as ongoing proceedings in state trial court); see also Drury v. Cox, 457 F.2d 764, 3 764-65 (9th Cir. 1972) (“[O]nly in the most unusual circumstances is a defendant entitled 4 to have federal interposition by way of injunction or habeas corpus until after the jury 5 comes in, judgment has been appealed from that the case concluded in the state courts.”) 6 CONCLUSION 7 For the foregoing reasons, the Petitioner’s request to proceed in forma pauperis is 8 GRANTED and the Petition is DISMISSED without prejudice because this Court must 9 abstain from interfering with the ongoing state criminal proceedings pursuant to the 10 abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971); Juidice v. Vail, 430 U.S. 11 327, 337 (1977) (holding that if Younger abstention applies, a court may not retain 12 jurisdiction but should dismiss the action.). 13 14 15 IT IS SO ORDERED. DATE: May 16, 2017 _______________________________________ HON. MICHAEL M. ANELLO United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 3 17cv0730 MMA (JMA)

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