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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 17cv0730 MMA (JMA)

MICHAEL SCHMITT,
Petitioner,

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v.

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ORDER: (1) GRANTING MOTION
TO PROCEED IN FORMA
PAUPERIS; and (2) DISMISSING
CASE WITHOUT PREJUDICE

JEFFREY BEARD, et al.,
Respondents.

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On April 10, 2017, Petitioner, a state prisoner proceeding pro se, filed a Petition

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for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. The Court dismissed the action

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without prejudice on April 13, 2017 because Petitioner had failed to satisfy the filing fee

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requirement and because Petitioner challenged his state court conviction, which must be

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done via 28 U.S.C. § 2254.

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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

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he is presently confined. Petitioner cannot afford the $5.00 filing fee. Thus, the Court

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GRANTS Petitioner’s application to proceed in forma pauperis, and allows Petitioner to

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prosecute the above-referenced action without being required to prepay fees or costs and
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17cv0730 MMA (JMA)

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without being required to post security. The Clerk of the Court shall file the Petition for

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Writ of Habeas Corpus without prepayment of the filing fee.

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ABSTENSION
The Petition must be dismissed because it is clear that this Court is barred from

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consideration of his claims by the abstention doctrine announced in Younger v. Harris,

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401 U.S. 37 (1971). Under Younger, federal courts may not interfere with ongoing state

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criminal proceedings absent extraordinary circumstances. Id. at 45-46; see Middlesex

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County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 431 (1982) (Younger

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“espouse[d] a strong federal policy against federal-court interference with pending state

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judicial proceedings.”) These concerns are particularly important in the habeas context

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where a state prisoner’s conviction may be reversed on appeal, thereby rendering the

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federal issue moot. Sherwood v. Tompkins, 716 F.2d 632, 634 (9th Cir. 1983).

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Absent extraordinary circumstances, abstention under Younger is required when:

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(1) state judicial proceedings are ongoing; (2) the state proceedings involve important

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state interests; and (3) the state proceedings afford an adequate opportunity to raise the

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federal issue. Columbia Basin Apartment Ass’n v. City of Pasco, 268 F.3d 791, 799 (9th

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Cir. 2001). All three of these criteria are satisfied here. At the time Petitioner filed the

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instant Petition, he states that he has yet to receive a decision on his direct appeal to the

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California Court of Appeal. (See Pet. at 2.) Thus Petitioner’s criminal case is still

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ongoing in the state courts. Further, there is no question that the state criminal

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proceedings involve important state interests.

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Finally, Petitioner has failed to show that he has not been afforded an adequate

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opportunity to raise the federal issues on direct appeal. Petitioner offers nothing to

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support a contention that the state courts do not provide him an adequate opportunity to

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raise his claims, and this Court specifically rejects such an argument. Indeed, Petitioner’s

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claims of ineffective assistance of counsel, and sentencing error under Blakely v.

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Washington, 542 U.S. 296 (2004) are the just type of claims that the state courts provide

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an opportunity to raise on direct appeal. Abstention is therefore required. See Huffman v.
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Pursue, Ltd., 420 U.S. 592, 608 (1975) (Younger applies to state appellate proceedings as

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well as ongoing proceedings in state trial court); see also Drury v. Cox, 457 F.2d 764,

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764-65 (9th Cir. 1972) (“[O]nly in the most unusual circumstances is a defendant entitled

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to have federal interposition by way of injunction or habeas corpus until after the jury

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comes in, judgment has been appealed from that the case concluded in the state courts.”)

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CONCLUSION

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For the foregoing reasons, the Petitioner’s request to proceed in forma pauperis is

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GRANTED and the Petition is DISMISSED without prejudice because this Court must

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abstain from interfering with the ongoing state criminal proceedings pursuant to the

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abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971); Juidice v. Vail, 430 U.S.

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327, 337 (1977) (holding that if Younger abstention applies, a court may not retain

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jurisdiction but should dismiss the action.).

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IT IS SO ORDERED.
DATE: May 16, 2017

_______________________________________
HON. MICHAEL M. ANELLO
United States District Judge

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