Dornin v. Lombardo et al

Filing 9

AMENDED ORDER Re: 8 Order dismissing case without prejudice. FURTHER ORDERED that the Court declines to issue a certificate of appealability. Signed by Judge Richard F. Boulware, II on 1/11/2018. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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DONALD C. DORNIN, JR.,

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Petitioner,
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vs.
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JOE LOMBARDO, et al.,
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Respondents.
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____________________________________/

2:15-cv-01007-RFB-NJK
AMENDED ORDER

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This is a habeas corpus proceeding in which the Court entered an order directing petitioner

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Dornin to show cause why this action should not be dismissed without prejudice for lack of

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exhaustion or under the Younger abstention doctrine. ECF No. 4. Dornin filed his response to that

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order. ECF No. 6. For reasons that follow, the Court shall dismiss this action without prejudice.

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Dornin asks this Court to grant him habeas relief with respect to his pending state criminal

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proceedings. He claims that he was arrested without probable cause, which violated his Fourth

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Amendment right to be free of unreasonable searches and seizures. He also claims that he was

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arrested on a felony warrant, also in violation of his rights under the Fourth Amendment. It appears

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that, as of the date he filed his petition, Dornin had yet to be sentenced or to pursue either of his

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claims in the state courts through to a decision on the merits by the state supreme court.

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As a general rule, a federal court will not entertain a habeas petition seeking intervention in a

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pending state criminal proceeding, absent special circumstances. See, e.g., Sherwood v. Tomkins,

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716 F.2d 632, 634 (9th Cir. 1983); Carden v. Montana, 626 F.2d 82, 83-85 (9th Cir. 1980); Davidson

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v. Klinger, 411 F.2d 746 (9th Cir. 1969). This rule of restraint is separate from the exhaustion

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doctrine and is ultimately grounded in principles of comity that flow from the abstention doctrine of

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Younger v. Harris, 401 U.S. 37 (1971). Under the Younger abstention doctrine, federal courts may

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not interfere with pending state criminal proceedings absent extraordinary circumstances. See Drury

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v. Cox, 457 F.2d 764, 764-65 (9th Cir. 1972) (“Our reading of Younger v. Harris convinces us that

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only in the most unusual circumstances is a defendant entitled to have federal interposition by way of

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injunction or habeas corpus until after the jury comes in, judgment has been appealed from and the

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case concluded in the state courts.”).

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Younger abstention does not apply in cases where extraordinary circumstances threaten great,

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immediate and irreparable injury. See Younger, 401 U.S. at 45–46, 53–54 (irreparable injury shown

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where statute flagrantly and patently violative of express constitutional prohibitions); Perez v.

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Ledesma, 401 U.S. 82, 85 (1971) (federal injunctive relief in pending state prosecutions proper in

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cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of

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obtaining a valid conviction). “[A]bstention is inappropriate if bad faith prosecution or harassment

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is present, or where a statute is flagrantly and patently violative of constitutional prohibitions.”

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Lebbos v. Judges of Superior Court, Santa Clara County, 883 F.2d 810, 814 (9th Cir.1989).

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Dornin claims that his former appointed counsel stood in the way of having his constitutional

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claims heard in state court, but makes no such representation with respect to his subsequently-

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appointed counsel. He has not made a showing that his constitutional claims cannot be a addressed

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in state court. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15 (1987) (a federal court should assume

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that state procedures will afford an adequate opportunity for consideration of constitutional claims

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“in the absence of unambiguous authority to the contrary”).

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Dornin claims there is “great and immediate danger of irreparable injury,” but he does not

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specify the nature of that injury. The “cost, anxiety, and inconvenience of having to defend against a

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single criminal prosecution, [can]not by themselves be considered ‘irreparable’ in the special legal

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sense of that term. Instead, the threat to the plaintiff's federally protected rights must be one that

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cannot be eliminated by his defense against a single criminal prosecution.” Younger, 401 U.S. at 46.

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Similarly, he claims that the State’s charges against him have been “brought in bad faith with

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the intent to harass,” but provides no supporting facts or evidence other than a claim that a prior

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investigation by Child Protective Services was determined to be unsubstantiated and that the

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prosecutor filed an erroneous notice of intent to seek habitual criminal status. Even if true, this is not

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the type of prosecutorial misconduct that calls for an exception to the Younger abstention doctrine.

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For example, an exception might be appropriate where repeated meritless prosecutions are instituted

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or threatened solely to harass one or more defendants or to chill their exercise of a constitutional

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right through fear of prosecution. See Younger, 401 U.S. at 47-49. Whereas allegations, like

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Dornin’s, that the State has merely been overzealous in bringing criminal charges is not sufficient to

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warrant federal court intervention. See Carden, 626 F.3d at 84 (finding no special circumstances

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where the petitioners contended that the prosecution had harassed them by charging them with

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nineteen counts when only six were required, and had caused deliberate delay by using the state

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judge disqualification statute for tactical purposes).

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In summary, the Court does not find that there are extraordinary circumstances in this case

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warranting intervention in the state court criminal proceeding. Dornin may seek whatever federal

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habeas relief that is legally appropriate upon the completion of his state criminal case, including his

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pursuit of direct appeals and state habeas proceedings.

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IT IS THEREFORE ORDERED that petitioner’s petition for writ of habeas corpus (ECF

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No. 5) is DISMISSED without prejudice on abstention grounds. The Clerk shall enter judgment

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accordingly.

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IT IS FURTHER ORDERED that the Court declines to issue a certificate of appealability.

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DATED this 11th day of January, 2018.

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RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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