1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PAMELA DELGADO BARRON, Case No.: 20-cv-00648-AJB-KSC Petitioner, 12 ORDER DISMISSING PETITIONER’S v. PETITION FOR THE RETURN OF 13 THE CHILD (Doc. No. 1) MATTHEW D. KENDALL, 14 Respondent. 15

16 Before the Court is Petitioner Pamela Delgado Barron’s (“Petitioner”) Verified 17 Petition for Return of the Child (“the Petition”), filed on April 2, 2020, against Respondent 18 Matthew D. Kendall (“Respondent”). (Doc. No. 1.) Petitioner seeks the return of her five 19 year old child, S.D. (“the Child”) to Mexico under the Hague Convention on the Civil 20 Aspects of International Child Abduction (“Hague Convention”) and the International 21 Child Abduction Remedies Act (“ICARA”). Additionally, on April 3, 2020, Petitioner filed 22 a “Memorandum of Points and Authorities in Support of Order to Show Cause Under the 23 Hague Convention for the Scheduling of an Expedited Hearing.” (Doc. No. 3.) The Court 24 ordered Respondent to show cause as to why the Petition should not be granted, scheduled 25 an expedited hearing (Doc. No. 6), and instructed the parties to specifically address the 26 issue of abstention at the hearing, (Doc. No. 17). The hearing on the order to show cause 27 was held on May 6, 2020. As set forth below, the Court VACATES the Court’s prior order 28 to show cause, ABSTAINS from ruling on the Petition, and DISMISSES the Petition. 1 I. BACKGROUND 2 Petitioner is a Spanish citizen, and resident of Mexico. (Petition (“Pet.”), Doc. No. 3 1 ¶ 9.) Respondent is a United States citizen. (Id.) Petitioner and Respondent were married 4 on November 11, 2006 in Huntington Beach, California. (Id.) Petitioner and Respondent 5 have one child together, S.D., born on March 7, 2015 in Mexico. (Id. ¶ 10) Petitioner 6 alleges Respondent, Petitioner, and the Child resided in Rosarito, Mexico from the time 7 the Child was born until Respondent wrongfully removed her to the United States. (Doc. 8 1-2 at 26.) The Child has purportedly not lived in any other location besides Rosarito, 9 Mexico. (Pet. ¶ 10.) Petitioner alleges that on January 12, 2020, Respondent removed the 10 Child from Rosarito, Mexico to San Diego, California without Petitioner’s consent. (Id. 11 ¶ 11, 16.) Petitioner was allegedly given no notice that Respondent intended to relocate 12 permanently. (Id.) Furthermore, Respondent apparently made no effort to secure custody 13 and visitation orders in Mexico. (Id. ¶ 17.) 14 On January 21, 2020, Respondent filed for legal separation of marriage in San Diego 15 Superior Court, claiming residency and child custody jurisdiction existed. (Id.) On January 16 23, 2020, Respondent applied ex parte to the state court for an emergency custody order. 17 (Doc. No. 1-2, Ex. E.) In his declaration in support of the ex parte request, Respondent 18 alleged Petitioner drives while intoxicated, with the Child in the vehicle, and uses 19 methamphetamine while the Child is in her care. (Doc. No. 1-2 at 31.) Respondent’s 20 request for ex parte relief was denied by the state court for lack of emergency jurisdiction. 21 (Doc. No. 1-2, Ex. E.) 22 On February 21, 2020, Petitioner appeared ex parte before the San Diego Superior 23 Court to request an emergency custody order to immediately return the Child to Mexico. 24 (Id.¶ 21; Doc. No. 1-2, Ex. H.) That same day, the state court issued a temporary emergency 25 custody and visitation order, finding that the Child “shall remain in the custody of the 26 father.” (Doc. No. 1-2 at 44.) In the state court’s ruling on Petitioner’s ex parte request, the 27 state court also recognized that the case was subject to the Hague Convention. (Id.) 28 Petitioner states that although no Petition for Return of the Minor Child had been filed by 1 Petitioner at that point, the state court set the matter for a “Hague status conference.” (Id. 2 at 45.) The state court held a status conference, and the matter was initially scheduled for 3 a Hague evidentiary hearing on March 19, 2020. The evidentiary hearing was subsequently 4 rescheduled to April 10, 2020 due to the state court closure related to the COVID-19 5 pandemic. The San Diego Superior Court then announced multiple extensions of the court 6 closure. Due to these closures, the hearing has not been held. 7 II. PROCEDURAL HISTORY 8 The Petition for the Return of the Child before this Court was filed on April 2, 2020. 9 (Doc. No. 1.) The next day, Petitioner also filed a memorandum of points and authorities 10 in support of an order to show cause under the Hague Convention for the scheduling of an 11 expedited hearing. (Doc. No. 3.) Petitioner requested, among other things, (1) an expedited 12 hearing, (2) an order vacating the San Diego Superior Court’s temporary emergency 13 custody and visitation order, and (3) an order for the return of the Child to Mexico. (Doc. 14 No. 3 at 4.) The expedited hearing was scheduled, and Respondent was ordered to show 15 cause why the Petition should not be granted, and why the Court should not vacate the state 16 court order. (Doc. No. 6 at 6.) On April 21, 2020, Petitioner filed an ex parte motion for an 17 order staying the San Diego Superior Court proceedings, and again, for an order vacating 18 the temporary emergency custody and visitation order. (Doc. No. 9.) Petitioner applied for 19 ex parte relief because Respondent represented to Petitioner he was going to apply ex parte 20 to the state court for an expedited Hague evidentiary hearing. (Id. at 2.) The state court 21 denied Respondent’s request, stating there was no legal emergency. (Doc. No. 11 at 3.) 22 Based on this, the Court denied as moot Petitioner’s ex parte request for a stay, and also 23 denied without prejudice Petitioner’s ex parte request for the Court to vacate the temporary 24 emergency custody and visitation order. (Doc. No. 17.) 25 Then, on April 23, 2020, Respondent filed a response to the Court’s order to show 26 cause. (Doc. No. 13.) Petitioner replied on April 27, 2020. (Doc. No. 14.) The Court 27 instructed the parties to address the issue of abstention and held a hearing on the order to 28 show cause on May 6, 2020. This order follows. 1 III. DISCUSSION 2 The issue regarding abstention presents questions of first impression, particularly in 3 light of the unprecedented COVID-19 global pandemic, and related state and federal court 4 closures. In showing cause as to why the Petition should not be granted, Respondent 5 contends the Court should abstain because the Hague Convention proceedings commenced 6 in San Diego Superior Court on February 21, 2020 and would have proceeded to a hearing 7 but for the COVID-19 related state court closures. (Doc. No. 13 at 2.) While Petitioner did 8 not formally file a Hague petition in state court, Respondent argues the state court sua 9 sponte set an evidentiary hearing under the Hague Convention, and Petitioner did not object 10 despite multiple opportunities to do so. (Id.) Respondent also contends Petitioner’s action 11 in filing the Petition in federal court after the state court set the matter for a Hague hearing 12 demonstrates forum shopping. In Respondent’s view, Petitioner filed her Petition in federal 13 court after the state court issued an unfavorable temporary custody and visitation order. 14 (Id. at 3.) 15 Petitioner, on the other hand, argues that this Court should not abstain because she 16 did not formally file a Petition in state court. (Doc. No. 14 at 3.) Petitioner maintains that 17 under the Hague Convention and ICARA, it is her choice whether to bring the Petition in 18 a state or a federal forum. (Id. at 3–4.) From Petitioner’s view, the state court’s raising of 19 the Hague matter sua sponte was impermissible, and in any event, even if the issue was 20 properly raised, it was never litigated before the state court. (Id. at 5.) Therefore, Petitioner 21 asserts that the instant Petition is properly before the Court, and the Court should not 22 abstain from ruling on it. The Court addresses the issues of abstention below. 23 A. The San Diego Superior Court’s Sua Sponte Setting of the Hague 24 Hearing and Petitioner’s Acquiescence 25 Naturally, the first question this particular abstention issue presents is whether the 26 Hague matter is properly before the San Diego Superior Court. Whereas Petitioner’s 27 contention is that the state court had no authority to sua sponte raise the Hague issues, 28 (Doc. No. 14 at 3), Respondent argues the Hague issues are properly before the state court 1 because Petitioner essentially agreed to the state court’s jurisdiction to hear the Hague 2 matter, (Doc. No. 13 at 2). The Court finds Respondent’s position persuasive. 3 As an initial matter, both parties do not cite any authority, and the Court is not aware 4 of such authority explaining whether a court may raise Hague issues sua sponte. Rather, 5 case law and statutory authority only provide guidance as to where and how a petitioner 6 may seek to file a Hague petition. For example, Ninth Circuit case law states, “[u]nder the 7 Hague Convention and ICARA, [Petitioner] may choose to bring [her] Hague Convention 8 claim in either federal or state court.” Holder v. Holder,

(9th Cir. 2002); 9

(a). Additionally, ICARA provides, “[a]ny person seeking to initiate 10 judicial proceedings under the Convention for the return of a child . . . may do so by 11 commencing a civil action by filing a petition for the relief sought in any court which has 12 jurisdiction. . . .”

(b). 13 Notwithstanding the lack of clear authority on whether a court may sua sponte set a 14 Hague hearing, a fair and complete review of the issue requires further background on the 15 state court proceedings. On February 20, 2020, Petitioner filed in state court an ex parte 16 application requesting the return of the Child to Mexico under the state court’s temporary 17 emergency jurisdiction. (Doc. No. 13 at 3–4.) A hearing was scheduled for the following 18 day. (Id.) At the February 21, 2020 ex parte hearing, the parties accused each other of 19 domestic violence. (Id.) At the outset of the hearing, San Diego Superior Court Judge 20 McKenzie noted the Hague issues Petitioner raised in her ex parte pleadings and then sent 21 the attorneys/parties outside of the courtroom to meet and confer. (Doc. No. 13-1 at 2–3.) 22 Due to the allegations of domestic violence, Judge McKenzie then held an evidentiary 23 hearing that day, and issued a temporary custody and visitation order. (Doc. No. 13 at 3– 24 4.) Judge McKenzie found that Petitioner had been abusing alcohol, possibly illegal drugs, 25 and had driven inebriated with the Child in the vehicle, without a valid driver’s license, or 26 insurance. (Id.) As such, Judge McKenzie ordered that the Child remain in the United 27 States in Respondent’s care, and granted Petitioner supervised visitation and daily 28 FaceTime calls. (Id.) At the conclusion of the evidentiary hearing, Judge McKenzie set a 1 status hearing before San Diego Superior Court Judge Mangione, stating he was the 2 “designated Hague Judge.” (Id.) Judge McKenzie explained the purpose of the status 3 hearing was to schedule an expedited hearing under the Hague Convention. (Id.) 4 The status hearing was held before Judge Mangione on March 9, 2020, and Judge 5 Mangione scheduled an evidentiary hearing under the Hague Convention for March 19, 6 2020. (Id.) However, because of the COVID-19 pandemic, Judge Mangione rescheduled 7 the evidentiary hearing. (Id.) But due to the continued state court closure, the hearing has 8 not occurred. Respondent emphasizes Petitioner did not object to the setting of the Hague 9 hearing, although Petitioner had at least four opportunities to do so between Judge 10 McKenzie’s evidentiary hearing and the rescheduling of the Hague hearing by Judge 11 Mangione. (Id.) 12 Against this backdrop, whether or not the state court had authority to sua sponte set 13 the Hague hearing, there is strong support that Petitioner waived any argument that she 14 opposed the litigation of the Hague issues in state court. See Arizona v. Tohono O’odham 15 Nation,

(9th Cir. 2016) (“A waiver is an intentional relinquishment or 16 abandonment of a known right or privilege. It can preclude the assertion of legal rights. An 17 implied waiver of rights will be found where there is ‘clear, decisive and unequivocal’ 18 conduct which indicates a purpose to waive the legal rights involved.”) At oral argument, 19 Petitioner represented that in between the time which the state court heard her ex parte 20 application, and the scheduling of the Hague hearing, Petitioner intended to file a Hague 21 petition in federal court. In response, Respondent countered that this was never brought to 22 his attention or that of the state court. The Court agrees that there is no support or evidence 23 that a federal Petition at that point was imminent. To the contrary, Petitioner had from 24 February 20, 2020—the date the state court raised the Hague issue—to either object to or 25 to file a federal petition. But Petitioner did not do so until April 2, 2020, when it was evident 26 the Hague hearing was going to be postponed indefinitely due to the COVID-19 state court 27 closures. Also, Petitioner mentioned in her state court ex parte application that “San Diego 28 is not the proper place for court proceedings and I will be challenging this Court’s ability 1 to hear our case.” (Doc. No. 1-2 at 47.) Tellingly, Petitioner did not indicate she intended 2 to file the Petition in federal court. See Barzilay v. Barzilay,

(8th Cir. 3 2008) (noting that the petitioner “informed the state court that he intended to file a Hague 4 petition in federal district court to litigate the merits of the Hague issues in that forum”). 5 Instead of raising any sort of objection, Petitioner instead consented to the state court’s 6 jurisdiction to adjudicate the Hague matter, and agreed to the state court’s scheduling of 7 the Hague evidentiary hearing. 8 Although not raised in her briefs, Petitioner cited to Barzilay v. Barzilay,

(8th Cir. 2008) at the order to show cause hearing as support that a court may not sua 10 sponte raise Hague matters. In Barzilay, the father sought the return of his children to Israel 11 by filing a Hague petition in federal court. Id. at 846. The mother previously petitioned a 12 state court to modify custody provisions in their Missouri divorce decree. Id. The father 13 moved to dismiss the mother’s petition on the grounds that the state court lacked 14 jurisdiction over the children’s custody because of a prior decree issued by an Israeli court. 15 Id. The father did not file a Hague petition in state court. Id. at 849. The state court issued 16 an order denying the father’s motion to dismiss and sua sponte ruled on the merits of the 17 Hague issue by stating that “[t]he mere presence of the minor children on vacation in Israel 18 is insufficient to establish a ‘habitual presence’ [under ICARA].” Id. The mother moved to 19 dismiss the federal action for failure to state a claim. Id. at 846. The district court abstained 20 under Younger, concluding the father had an adequate opportunity to litigate his Hague 21 claims in the ongoing state court proceedings, and the state court issued a ruling on the 22 merits of the Hague issue. Id. 23 The Eighth Circuit reversed the district court, holding that abstention was improper 24 because the Hague issue was not raised by either parties and the father did not have the 25 opportunity to litigate the Hague issue. Specifically, the court explained: 26 The record shows that throughout the state court proceedings [the father] emphasized the limited nature of his argument as being only jurisdictional. 27 [The father] never engaged in an argument in the state court on the merits of 28 the Hague Convention considerations—habitual residence and wrongful 1 removal. Rather, he informed the state court that he intended to file a Hague petition in federal district court to litigate the merits of the Hague issues in 2 that forum. 3 Id. at 852 (emphasis added). 4 The instant matter before the Court is distinguishable from Barzilay. Here, Petitioner 5 had at least four opportunities to either file a federal petition or to object to the state court 6 setting of the Hague hearing: (1) before Judge McKenzie held an evidentiary hearing on 7 February 21, 2020, (2) after Judge McKenzie’s ruling and Hague order that same day, (3) 8 prior to the March 9, 2020 status conference before Judge Mangione wherein the Hague 9 evidentiary hearing was scheduled, and (4) when Judge Mangione’s clerk called to 10 reschedule the evidentiary hearing in light of the COVID-19 related court closure. (Doc. 11 No. 13 at 4.) But unlike the father in Barzilay, Petitioner here never stated her intent to file 12 her Hague Petition before the federal court. To the contrary, the record supports that 13 Petitioner acquiesced and consented to the state court’s jurisdiction to hear the Hague 14 matter. Petitioner agreed to the setting of an expedited evidentiary hearing on the Hague 15 issue, and but for the COVID-19 court closures, nothing in the record suggests Petitioner 16 would have objected or have been denied the opportunity to litigate the Hague issue. Thus, 17 Petitioner waived her rights to choose a federal forum, and the Hague matter was properly 18 before the state court. See Tohono O’odham Nation,

(“An implied waiver 19 of rights will be found where there is ‘clear, decisive and unequivocal’ conduct which 20 indicates a purpose to waive the legal rights involved.”). 21 B. Abstention 22 Having determined that the Hague matter was properly before the San Diego 23 Superior Court, the Court next addresses whether it should abstain from hearing the 24 Petition under either the Younger or Colorado River abstention doctrines. 25 The Ninth Circuit has held that “[b]ecause the federal courts’ obligation to adjudicate 26 claims within their jurisdiction is virtually unflagging, abstention is permissible only in a 27 few carefully defined situations with set requirements.” U.S. v. Morros,

, 703 28 (9th Cir. 2001) (quotations omitted). “Whether it is labeled comity, federalism, or some 1 other term, the policy objective behind Younger abstention is to avoid unnecessary conflict 2 between state and federal governments.”

(quotations omitted). The Younger 3 doctrine, named after the United States Supreme Court case Younger v. Harris, requires 4 federal courts to abstain from intervening in pending state judicial proceedings when (1) 5 there are ongoing state judicial proceedings; (2) the proceedings implicate important state 6 interests; and (3) the state proceedings provide the plaintiff with an adequate opportunity 7 to raise federal claims.

, 39–53 (1971). 8 The three abstention elements under Younger are present in this case. First, the 9 Hague matter is still properly before the San Diego Superior Court. While the state court’s 10 closure remains in place, nothing in the record indicates that Petitioner will be deprived of 11 the opportunity to litigate her Hague issues once the state court is reopened and able to do 12 so. See Witherspoon v. Orange Cty. Dep’t of Soc. Servs.,

(C.D.

) (“Once the juvenile court’s dependency proceeding concludes, the state court 14 will finish adjudicating Ms. Witherspoon’s ICARA petition.”). Second, these proceedings 15 implicate important state interests. This case concerns domestic relations between a 16 husband and wife married in Southern California and the safety and welfare of a minor 17 child. The Ninth Circuit has held that “the realm of domestic relations is and has been 18 traditionally governed by state law.” Kitchens v. Bowen,

(1987) 19 (holding that Younger abstention was permissible in cases dealing with the domestic 20 realm). Here, these state interests are particularly salient where the state court has already 21 issued a temporary emergency custody and visitation order to protect the Child from 22 allegations of mistreatment and abuse. (Doc. No. 13-1 at 6.) Third, the state proceeding— 23 once the state court is reopened—gives Petitioner an adequate opportunity to raise the 24 issues she seeks to raise here in federal court. Particularly, the state court has jurisdiction 25 to hear the Hague issues as ICARA and the Hague Convention grant concurrent jurisdiction 26 to state and federal courts. See

(a). And, there is no indication that the 27 state court would not provide Petitioner with the opportunity to fully litigate her Hague 28 claim. In fact, the state court has even designated a “Hague Judge” for this very purpose, 1 and attempted to set the matter for a Hague evidentiary hearing before the court closure. 2 (Doc. No. 13 at 3–4.) 3 Further, an analysis of abstention under Colorado River does not compel a contrary 4 result. Under Colorado River, the Supreme Court addressed abstention for the sole purpose 5 of avoiding duplicative state and federal litigation. Under Colorado River, considerations 6 of “wise judicial administration, giving regard to conservation of judicial resources and 7 comprehensive disposition of litigation,” may justify a decision by the district court to stay 8 federal proceedings pending the resolution of concurrent state court proceedings involving 9 the same matter. Colorado River, 424 U.S. at 817; Intel Corp. v. Advanced Micro Devices, 10 Inc.,

(9th Cir. 1993). “When a district court decides to dismiss or stay 11 under Colorado River, it presumably concludes that the parallel state-court litigation will 12 be an adequate vehicle for the complete and prompt resolution of the issues between the 13 parties. If there is any substantial doubt as to this, it would be a serious abuse of discretion 14 to grant the stay or dismissal at all.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 15

(1983). The Ninth Circuit has recognized eight factors for assessing the 16 appropriateness of a Colorado River stay or dismissal: (1) which court first assumed 17 jurisdiction over any property at stake; (2) the inconvenience of the federal forum; (3) the 18 desire to avoid piecemeal litigation; (4) the order in which the forums obtained jurisdiction; 19 (5) whether federal law or state law provides the rule of decision on the merits; (6) whether 20 the state court proceedings can adequately protect the rights of the federal litigants; (7) the 21 desire to avoid forum shopping; and (8) whether the state court proceedings will resolve 22 all issues before the federal court. R.R. St. & Co. v. Transp. Ins. Co.,

, 978 23 (9th Cir. 2011) (quoting Colorado River, 424 U.S. at 818). 24 In running through the Colorado River factors, the Court concludes that dismissal of 25 the Petition is appropriate. First, the Hague issue was first raised in state court, with 26 Petitioner acquiescing to the state court’s jurisdiction to hear the Hague matter. Second, 27 although Hague petitions involve questions of federal law, state courts have been equipped 28 with concurrent jurisdiction to hear Hague petitions and “can adequately protect the rights 1 of the federal litigants.” Third, Respondent has raised legitimate concerns regarding forum 2 shopping, evidenced by the fact that Petitioner did not file the Petition in this Court until 3 after availing herself of state court, and receiving an unfavorable ruling. Lastly, there is no 4 doubt that the state court “will resolve all issues before the federal court” given the state 5 court specifically designated a “Hague Judge” in addition to scheduling a Hague 6 evidentiary hearing before those proceedings were postponed by the COVID-19 pandemic. 7 Petitioner cites to Yang v. Tsui,

(3d Cir. 2005), and similar cases, for 8 the proposition that if the Hague issue has been “raised but not litigated” in state court, a 9 federal court should not abstain from hearing a Hague Petition. Yang,

. 10 However, a close review of the facts, particularly in light of the COVID-19 court closures, 11 demonstrates that this case is distinguishable. In Yang, the mother was a resident of British 12 Columbia and the father of the United States. Yang,

. A dispute as to the 13 custody of their daughter led each party to file for custody, resulting in an award of custody 14 to the father in the United States and an award of custody to the mother in British Columbia. 15

After unsuccessfully attempting to secure a voluntary return of the child, the mother 16 filed a Hague petition in federal district court.

Citing Younger, the district court 17 abstained from consideration of the Petition proceedings.

. The Third Circuit 18 noted, “[t]he first question in applying the Younger abstention doctrine to a Petition raising 19 Hague Convention claims in federal court is whether the federal proceeding will interfere 20 with an ongoing state proceeding.”

at 202–03. Ultimately holding that abstention was 21 inappropriate, the court went on to reason: 22 The parties agree that [the mother] has not raised the Hague Convention in state court. In addition, the state court has entered an interim custody order in 23 favor of [the father] but has held no hearings and made no findings with regard 24 to the Hague Convention. Thus, the District Court’s adjudication of the Hague Convention Petition would have been consistent with the statutory provisions 25 and would not have interfered with the state court proceedings. 26

. 27 28 Unlike Yang, the evidence here suggests Petitioner would have had a full and fair 1 || opportunity to litigate her Hague issues but for the COVID-19 related state court closure. 2 Indeed, Petitioner agreed to the setting of a Hague hearing before the designated Hague 3 ||judge in state court. While the court closures associated with the global pandemic 4 ||postponed that hearing, there is nothing to suggest that Petitioner will not have the 5 ||opportunity to fully litigate her Hague Petition once the state court reopens. In fact, if the 6 || Court does not abstain, there is a likelihood “the federal proceeding will interfere with an 7 ||ongoing state proceeding” given that the state court has invoked temporary emergency 8 || jurisdiction to protect the Child, convened a status conference on the Hague issue, and has 9 || attempted to set the Hague trial date. Yang, 416 F.3d at 202—03. Thus, although the Hague 10 ||issue has been “raised but not litigated” in state court, the postponement of the opportunity 11 || to litigate is only temporary in light of the pandemic. Yang,

. 12 ||IV. CONCLUSION 13 In the interest of comity, the conservation of judicial resources, and to avoid 14 |/conflicting judgments, the Court abstains from ruling on the Petition under both Younger 15 Colorado River. Petitioner acquiesced to the state court assuming jurisdiction of the 16 Hague matter, and but for the pandemic, the record indicates Petitioner would have 17 ||received her Hague hearing. The COVID-19 pandemic has indeed presented many difficult 18 unprecedented challenges, including both state and federal court closures and the 19 ||suspension of both state and federal trials. However, the Court concludes that the state 20 court is an adequate forum for Petitioner to fairly and fully litigate her Hague issues once 21 state court has reopened. Thus, the Court VACATES the Court’s prior order to show 22 ||cause, ABSTAINS from ruling on the Petition, and DISMISSES the Petition. All other 23 ||relief requested in the Petition, particularly, Petitioner’s request to vacate the state court’s 24 || order is also DENIED AS MOOT. 25 IT ISSO ORDERED. 26 || Dated: May 18, 2020 © ¢ 2] Hon, Anthony J.Battaglia 28 United States District Judge 12

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