(HC) Pink v. Gastelo

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA DVONTAE LAROME PINK, Case No. 1:19-cv-01092-EPG-HC 12 Petitioner, ORDER TO SHOW CAUSE 13 v. JOSIE GASTELO, 15 Respondent.

17 Petitioner Dvontae Larome Pink is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

19 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a habeas petition and allows a district court to dismiss a petition before the respondent is ordered to file a response, if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . .” In Younger v. Harris, 401 U.S. 37 23 (1971), the Supreme Court held that when there is a pending state criminal proceeding, federal courts must refrain from enjoining the state prosecution absent special or extraordinary circumstances. 401 U.S. at 45. See also Kowalski v. Tesmer, 543 U.S. 125, 133 (2004) (“The doctrine of Younger v. Harris . . . reinforces our federal scheme by preventing a state criminal defendant from asserting ancillary challenges to ongoing state criminal procedures in federal court.”).

1 In the instant federal habeas petition, Petitioner challenges his 2014 convictions in the | Kern County Superior Court. (ECF No. 1 at 1).' On appeal, the California Court of Appeal, Fifth | Appellate District reversed his convictions on counts 7 and 12 and remanded the matter to the | trial court. (ECF No. | at 2, 125). The petition states that there is an ongoing proceeding in the | California Court of Appeal, Fifth Appellate District. (Id. at 3).

6 Accordingly, the Court HEREBY ORDERS Petitioner to SHOW CAUSE why the | petition should not be dismissed pursuant to Younger v. Harris, 401 U.S. 37 (1971), within | THIRTY (30) days of the date of service of this order.

9 Petitioner is forewarned that failure to follow this order may result in a recommendation | for dismissal of the petition pursuant to Federal Rule of Civil Procedure 41(b) (a petitioner’s | failure to prosecute or to comply with a court order may result in a dismissal of the action).

B IT IS SO ORDERED.

Dated: _ August 23, 2019 [Jee Fey — 15 UNITED STATES MAGISTRATE JUDGE | | page numbers refer to the ECF page numbers stamped at the top of the page.