1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8

9

10 MICHAEL ESLEY VICKERS, 11 Petitioner, No. C 20-cv-08773WHA

12 v.

13 GISELLE MATTESON, WARDEN, ORDER RE MOTION TO DISMISS HABEAS CORPUS PETITION 14 Respondent.

15

16 INTRODUCTION 17 Petitioner seeks a writ of habeas corpus pursuant to

for a state 18 conviction that he alleges violated his Fourteenth Amendment due process rights. Respondent 19 moves to dismiss the petition because petitioner still has a criminal appeal pending in state 20 court. For the reasons stated below, respondent’s motion to dismiss is GRANTED. The petition 21 is DISMISSED WITHOUT PREJUDICE. 22 STATEMENT 23 A Contra Costa County Superior Court jury found petitioner Michael Vickers guilty of 24 second-degree murder and intentional discharge of a firearm for a shooting that occurred in 25 December of 2014. The jury also found true the allegations of a prior strike and prior serious 26 felony conviction. These enhancements (which were, at the time, mandatory) increased 27 petitioner’s sentence and he received 60 years to life in state custody. Petitioner appealed to 1 the California Court of Appeal, First Appellate District, which affirmed petitioner’s conviction 2 in an unpublished opinion in June 2019 but remanded the case for potential sentence 3 modification. The First Appellate District believed it “necessary for the trial court to 4 determine whether to exercise its discretion to strike the firearm enhancement . . . [and] the 5 prior serious felony conviction enhancement” pursuant to California Penal Code Sections 6 12022.53 and 667, respectively. People v. Vickers, No. A153103,

, at *7 7 (Cal. Ct. App. June 28, 2019). The California Supreme Court denied petitioner’s request for 8 review on September 11, 2019. The First Appellate District issued a remittitur on September 9 24, 2019, and it is this date, petitioner argues, that marks the conclusion of litigation on the 10 issues raised in his petition (Dkt. Nos. 1 at 5–6; 12 at 1, 2; 13 at 2, 4). 11 On remand, the Contra Costa County Superior Court denied petitioner’s motion to strike 12 the prior conviction and gun enhancement in October 2020. It saw no need to dislodge its prior 13 imposition of sentence and again petitioner received 60 years to life. Petitioner appealed to the 14 First Appellate District on November 6, 2020 (Dkt. No. 13 at 2). 15 While that appeal was pending, petitioner turned to the federal courts. He filed a federal 16 petition for writ of habeas corpus in December 2020, alleging violations of his Fourteenth 17 Amendment due process rights in two instances: (1) when the trial court allowed petitioner’s 18 rap lyrics into evidence, and (2) when the trial court refused to strike the enhancements to 19 petitioner’s sentence (Dkt. No. 1 at 21, 31). 20 His appeal of his sentence remains pending as of this order (Dkt. Nos. 12 at 2; 13 at 2). 21 ANALYSIS 22 Comity and federalism require federal courts not to interfere with ongoing state criminal 23 proceedings, barring extraordinary circumstances. See Younger v. Harris,

, 43–54 24 (1971). State appellate review remains part of state criminal proceedings and must be 25 completed before a federal court may entertain an action. See Dubinka v. Judges of the 26 Superior Court,

, 223 (9th Cir. 1994). Grants of injunctive or declaratory relief by 27 a federal court, while state criminal proceedings chug along, could become moot should an 1 To avoid premature federal court interference, Younger abstention applies when (1) state 2 judicial proceedings remain pending, (2) the state proceedings involve important state interests, 3 and (3) the state proceedings provide adequate opportunity to raise constitutional claims. See 4 Middlesex County Ethics Comm. v. Garden State Bar Ass’n,

(1982). Our 5 court of appeals recognizes a fourth element, namely (4) the federal court’s action would 6 interfere with the state proceeding by enjoining it directly, or have the practical effect of doing 7 so, in a way that Younger rejects. See Gilbertson v. Albright,

(9th Cir. 8 2004); and AmerisourceBergen Corp. v. Roden (“ABC”),

(9th Cir. 2007). 9 Should all factors be met, a district court must refrain from entertaining the same issues under 10 consideration in state judicial proceedings. 11 Petitioner argues that all state proceedings as to these two issues (introduction of rap 12 lyrics and imposition of his enhancements for gun and a prior strike) concluded on September 13 24, 2019. Therefore, petitioner asserts, Younger abstention does not apply. Alternatively, 14 petitioner argues that even if this order does contemplate the abstention elements, they are not 15 met, and petitioner is entitled to relief in federal court. Lastly, petitioner requests a stay instead 16 of an outright dismissal. Respondent opposes all of petitioner’s arguments, asserting that 17 Younger abstention would be proper, and highlights the fact that petitioner can file a new 18 habeas petition once state proceedings conclude (Dkt. Nos. 12 at 2, 3, 4; 13 at 4, 5; 14 at 2–3). 19 This order finds Younger abstention appropriate. 20 First, state judicial proceedings clearly remain ongoing. In November 2020, plaintiff 21 appealed the trial court’s refusal to strike enhancements from petitioner’s sentence. It remains 22 ongoing. Petitioner filed his state appeal prior to filing his federal petition and so that state 23 action must conclude before a district court can hear petitioner’s due process claims, especially 24 because one of the due process claims (the trial court’s refusal to reduce petitioner’s sentence) 25 acts as the foundation for the ongoing state appeal. Second, state criminal proceedings 26 implicate important state interests, and petitioner’s appeal stems from a criminal conviction 27 charged by the Contra Costa County District Attorney’s office. See Kelly v. Robinson, 479 1 constitutional claims. The California judicial system will allow petitioner to raise 2 constitutional concerns. Fourth, the federal court’s action would interfere with the state 3 proceeding by enjoining it directly or having the practical effect of doing so. Parsing the due 4 process claims at this point would be inappropriate. Delving into the underlying trial before 5 the California system has had its say would infringe the comity due our state courts. Respect 6 for California’s ability to adjudicate its own cases is a genuine concern. All elements for 7 abstention have been met. 8 This order cannot grant petitioner’s request to stay the proceedings and hold them in 9 abeyance while allowing the pending state appeal to continue until completion. True, district 10 courts may stay “mixed petitions” under Rhines v. Weber,

(2005). 11 However, that relief is available only when a petitioner has received a final decision from the 12 state courts and already sought state habeas relief. In those situations, a petitioner needs time 13 to return to state court; here, petitioner needs time to complete his state court proceedings. 14 There is a meaningful difference. That is: the completion of a state court proceeding is a final 15 decision. A final decision in state court triggers the ticking of AEDPA’s one-year timeframe to 16 file a federal habeas petition. Since petitioner has not received a final decision, Rhines does 17 not apply. Petitioner will have his full one year to file a new petition after state proceedings 18 become final. In fact, the appellate decision may bring up new claims that petitioner should 19 include in his next federal habeas petition (Dkt. Nos. 2; 11 at 2; 13 at 5) 20 Lastly, petitioner contends, “[R]eduction of petitioner’s sentence is unrelated to any [due 21 process] claims made in this [district court].” To echo the reasoning in the first Younger 22 element above, one of petitioner’s habeas due process claims rests squarely on reduction of his 23 sentence, the very focus of his pending state appeal. Therefore, this argument fails (Dkt. No. 24 13 at 2). 25 Petitioner’s action will be dismissed, without prejudice, under the Younger abstention 26 doctrine because of the pending appeal in the First Appellate District. Upon final decision in 27 state court, this order urges petitioner to promptly file a new petition for writ of habeas corpus 1 in federal court, because of the one-year statute of limitations from the date on which the direct 2 review concludes. See

(d). 3 This order sees no reason to issue a certificate of appealability. See

(c). 4 This is not a situation where “jurists of reason would find it debatable whether the petition 5 states a valid claim of the denial of a constitutional right [or] that jurists of reason would find it 6 debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 7

(2000). 8 CONCLUSION 9 Respondent’s motion to dismiss the petition is GRANTED. Petitioner’s request for a stay 10 is DENIED. 11 Petitioner’s action is DISMISSED WITHOUT PREJUDICE. Petitioner should swiftly file a 12 new petition for writ of habeas corpus at the conclusion of his state proceedings. The Clerk 13 shall close the file. 14 15 16 IT IS SO ORDERED.

S 18 Dated: April 16, 2021. LAC Pee 20 =~ LIAM ALSUP 21 UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28