(HC) Bretz v. United States District Court

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA DREW PATTERSON BRETZ, Case No. 1:20-cv-00663-JDP 12 Petitioner, FINDINGS AND RECOMMENDATIONS THAT COURT ABSTAIN FROM 13 v. EXERCISING JURISDICTION AND DISMISS THE CASE WITHOUT PREJUDICE UNITED STATES DISTRICT COURT, OBJECTIONS DUE IN FOURTEEN DAYS 15 Respondent.

ECF No. 1 ORDER DISCHARGING MAY 15, 2020 17 ORDER TO SHOW CAUSE 18 ECF No. 4 19 ORDER DIRECTING CLERK OF COURT TO ASSIGN CASE TO DISTRICT JUDGE 21 Petitioner Drew Patterson Bretz, a state pre-trial detainee without counsel, seeks a writ of habeas corpus under 28 U.S.C. § 2241.1 ECF No. 1. Petitioner claims that his continued pre-trial detention violates his constitutional rights. Id. at 3. Specifically, he claims that he is being held in state detention on a 2017 federal warrant without ever being formally charged with a federal crime. Id. On May 15, 2020, we ordered petitioner to show cause why his petition should not be 1 Although petitioner has filed his petition on a California state habeas petition form, we will consider his petition under 28 U.S.C. § 2241—the proper vehicle for state pretrial detainees seeking federal habeas relief. See McNeely v. Blanas, 336 F.3d 822, 824 n.1 (9th Cir. 2003).

1 dismissed for failure to exhaust his claim before the state courts. ECF No. 4. On June 10, 2020, petitioner responded to our order to show cause, stating that he has taken all steps available to him to exhaust his claims.2 ECF No. 7. We will discharge our order to show cause. ECF No. 4.

4 However, because petitioner’s state criminal case is ongoing (and he is detained in that case), we recommend that the court decline to exercise jurisdiction over this petition, dismiss the petition without prejudice, and decline to issue a certificate of appealability.

7 Discussion 8 In Younger v. Harris, 401 U.S. 37, 44 (1971), the Supreme Court held that a federal court generally cannot interfere with pending state criminal proceedings. This holding, commonly referred to as the Younger abstention doctrine, is based on the principle of federal-state comity.

11 See id. In the habeas context, “[w]here . . . no final judgment has been entered in state court, the state court proceeding is plainly ongoing for purposes of Younger.” Page v. King, 932 F.3d 898, 902 (9th Cir. 2019). Absent rare circumstances, a district court must dismiss such actions. See Cook v. Harding, 190 F. Supp. 3d 921, 935, 938 (C.D. Cal. 2016), aff’d, 879 F.3d 1035 (9th Cir. 2018); Perez v. Ledesma, 401 U.S. 82, 85 (1971) (“Only in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown” is federal intervention in an on-going state criminal proceeding appropriate.).

19 Petitioner is currently detained in Fresno County Jail while awaiting trial for his 2017 state domestic violence charges. ECF No. 1 at 2. Petitioner claims that he was granted bail for his state charges but is in continued detention solely due to a federal warrant for an unrelated federal criminal charge. Id. at 3; see United States v. Bretz, 1:17-mj-00167-SAB (E.D. Cal. Sept.

23 25, 2017). Contrary to petitioner’s assertions, the Fresno County Superior Court’s public docket reveals that petitioner has been held continually in Fresno County Jail since 2017 on account of his state domestic violence charges.3 A settlement conference in petitioner’s state domestic Although insufficient to prove exhaustion for purposes of federal habeas relief, petitioner has provided proof of two recent grievances he submitted to Fresno County. ECF No. 1 at 7-8.

3 We have reviewed the Fresno County Superior Court’s public docket and take judicial notice of it per Rule 201 of the Federal Rules of Evidence. See Fresno County Superior Court Smart violence case is scheduled for July 23, 2020. Petitioner has presented no proof that he is being held on his federal charges, and he has failed to show that extraordinary circumstances warrant this court’s intervention in his state criminal proceedings.4 See Perez, 401 U.S. at 82; Carden v. Montana, 626 F.2d 82, 84 (9th Cir. 1980). Accordingly, this court should decline to intervene.

5 Order 6 The May 15, 2020 order to show cause is discharged. ECF No. 4. The clerk of court is directed to assign this case to a district judge for the purposes of reviewing these findings and recommendations.

9 Certificate of Appealability 10 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing § 2254 Cases requires a district court to issue or deny a certificate of appealability when entering a final order adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). A certificate of appealability will not issue unless a petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires the petitioner to show that “jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, petitioner has not made a substantial showing of the denial of a constitutional right. Thus, we recommend that the court not issue a certificate of appealability.

24 Search, https://publicportal.fresno.courts.ca.gov/FRESNOPORTAL/Home/Dashboard/29 (search by name for “Bretz, Drew”). On September 28, 2017, in state criminal case F17903791, petitioner was remanded into custody, and his bail was set at $380,000. As of May 14, 2020, petitioner’s bail remained set at $380,000, and he remained in state custody at the county jail.

4 Moreover, petitioner recently sought habeas relief from Fresno County Superior Court. See Bretz v. Fresno County Superior Court, No. 20CRWR685495 (May 5, 2020). In the event this petition concerns the same claim as the instant petition, it warrants our abstention. See Page, 932 F.3d at 902.

4:2 VR MMU OIC EN OY OT Mt | Findings and Recommendations 2 For the foregoing reasons, we recommend that the court decline to exercise jurisdiction | under the Younger abstention doctrine, dismiss the case without prejudice to refiling once | petitioner has exhausted any future federal habeas claims before the state courts, and decline to | issue a certificate of appealability. ECF No. 1. These findings and recommendations are | submitted to the U.S. district judge presiding over the case under 28 U.S.C. § 636(b)(1)(B) and | Local Rule 304. Within fourteen days of the service of the findings and recommendations, the | parties may file written objections to the findings and recommendations with the court and serve a | copy on all parties. That document must be captioned “Objections to Magistrate Judge’s Findings | and Recommendations.” The presiding district judge will then review the findings and | recommendations under 28 U.S.C. § 636(b)(1)(C).

3 IT IS SO ORDERED. □ \ prssanp Rae — Dated: _ June 24, 2020 15 UNIT#D STATES MAGISTRATE JUDGE | No. 206.