1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JEFFERY LEE MOURNING, Case No.: 3:23-cv-1898-CAB-BGS

12 Petitioner, ORDER: (1) GRANTING IN FORMA 13 v. PAUPERIS APPLICATION (ECF No. 5) AND 14 ROBERT BURTON, Warden, et al.,

15 (2) DISMISSING AMENDED Respondents. PETITION WITHOUT PREJUDICE 16

17 Petitioner is a state prisoner proceeding pro se with a Petition for Writ of Habeas 18 Corpus filed pursuant to

. ECF No. 1. On October 27, 2023, this Court 19 denied Petitioner’s Motion to Proceed In Forma Pauperis (“IFP”) because he failed to 20 include a copy of his prison certificate. See ECF No. 3. On the same day, a second IFP 21 Motion was filed which includes the required certificate. See ECF No. 4. Petitioner filed a 22 First Amended Petition on October 30, 2023. ECF No. 5. 23 REQUEST TO PROCEED IN FORMA PAUPERIS 24 Based on Petitioner’s prison certificate and trust account statement, he has no funds 25 on account at the California correctional institution in which he is presently confined. See 26 ECF No. 4 at 2–3. Petitioner cannot afford the $5.00 filing fee. Thus, the Court GRANTS 27 Petitioner’s application to proceed in forma pauperis and allows Petitioner to prosecute the 28 1 above-referenced action without being required to prepay fees or costs and without being 2 required to post security. The Clerk of the Court shall file the Amended Petition for Writ 3 of Habeas Corpus without prepayment of the filing fee. 4 ABSTENSION 5 However, the First Amended Petition must be dismissed because it is clear that this 6 Court is barred from consideration of his claims by the abstention doctrine announced in 7 Younger v. Harris,

(1971). Under Younger, federal courts may not interfere 8 with ongoing state criminal proceedings absent extraordinary circumstances.

; 9 see Middlesex County Ethics Comm. v. Garden State Bar Ass’n,

(1982) 10 (Younger “espouse[d] a strong federal policy against federal-court interference with 11 pending state judicial proceedings.”). These concerns are particularly important in the 12 habeas context where a state prisoner’s conviction may be reversed on appeal, thereby 13 rendering the federal issue moot. Sherwood v. Tompkins,

, 634 (9th Cir. 1983). 14 Absent extraordinary circumstances, abstention under Younger is required when: (1) 15 state judicial proceedings are ongoing; (2) the state proceedings involve important state 16 interests; and (3) the state proceedings afford an adequate opportunity to raise the federal 17 issue. Columbia Basin Apartment Ass’n v. City of Pasco,

(9th Cir. 2001). 18 All three of these criteria are satisfied here. At the time he filed the instant Amended 19 Petition, Petitioner admits that he has yet to receive a decision on her direct appeal to the 20 California Court of Appeal. See ECF No. 5 at 2. Thus, his criminal case is still ongoing in 21 the state courts. Further, there is no question that the state criminal proceedings involve 22 important state interests. Finally, Petitioner is afforded an opportunity to raise his federal 23 issues as part of the state appellate proceedings. Therefore, Petitioner has failed to 24 demonstrate that extraordinary circumstances exist which would relieve this Court of its 25 obligation to abstain from interfering with ongoing state criminal proceedings and as such 26 the case must be dismissed. Juidice v. Vail,

(1977) (holding that if 27 Younger abstention applies, a court may not retain jurisdiction but should dismiss the 28 action.) 1 CONCLUSION 2 For the foregoing reasons, the Petitioner’s request to proceed in forma pauperis is 3 || GRANTED and the Amended Petition is DISMISSED without prejudice because this 4 ||Court must abstain from interfering with the ongoing state criminal proceedings pursuant 5 || to the abstention doctrine of Younger v. Harris,

(1971). 6 IT IS SO ORDERED. 7 ||Dated: October 31, 2023 <6 8 Hon. Cathy Ann Bencivengo ? United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28