(HC) Craig v. D'Agostini

6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA NORMAN JOHN CRAIG, Case No. 2:21-cv-01885-JDP (HC) 10 Petitioner, ORDER THAT THE CLERK OF COURT ASSIGN A DISTRICT JUDGE TO RULE ON 11 v. THESE FINDINGS AND RECOMMENDATIONS D’AGOSTINI, FINDINGS AND RECOMMENDATIONS 13 Respondent. THAT THE AMENDED PETITION BE DISMISSED WITHOUT LEAVE TO AMEND ECF No. 6 16 Petitioner, proceeding without counsel, seeks a writ of habeas corpus under 28 U.S.C. § 2254. Previously, after reviewing his initial petition, I found that its claims implicated ongoing state criminal proceedings and thus were inappropriate for federal habeas review. ECF No. 5. I gave petitioner an opportunity to amend and explain why his claims ought to proceed. Id. Petitioner filed an amended petition, which, for the reasons stated below, does not save his claims.

22 The amended petition is before me for preliminary review under Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine the habeas petition and order a response unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998).

27 The amended petition indicates that the state criminal proceedings against petitioner are suspended, but not concluded; petitioner states that the proceedings are suspended due to questions about his competency to stand trial. ECF No. 6 at 1. As I explained in my previous order, federal courts must generally abstain from considering claims that implicate ongoing state proceedings. See Younger v. Harris, 401 U.S. 37 (1971). Petitioner has not addressed the issue of abstention in his amended petition. Neither has he explained why his claims cannot be litigated in the state court.1 Finally, a section 2254 petition like the one at bar cannot be considered absent a finalized conviction. See 28 U.S.C. § 2254(a) (“[A] district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.”) (emphasis added). And petitioner has not stated that he would prefer to convert this action into an action proceeding under either section 2241 or 1983. Given that I have already afforded petitioner the opportunity to amend and address these issues, I find that further amendment would be futile.

13 Accordingly, it is ORDERED that the Clerk of Court shall assign a district judge to rule on these findings and recommendations.

15 Further, it is RECOMMENDED that the amended petition, ECF No. 6, be DISMISSED without leave to amend.

17 These findings and recommendations are submitted to the U.S. District Court Judge presiding over this case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within fourteen days of service of the findings and recommendations, petitioner 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 District Judge will then review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C).

1 The amended petition indicates that petitioner has filed two state habeas petitions in the El Dorado County Superior Court. ECF No. 6 at 2-3. He does not explicitly state, however, that he has presented his claims to the California Supreme Court. Thus, there is also a question as to whether petitioner’s claims are properly exhausted. | 1718 SO ORDERED.

3 ( — Dated: __April 6, 2022 Jess Vote 4 JEREMY D. PETERSON ; UNITED STATES MAGISTRATE JUDGE ul