(HC) Torrez v. Lundy

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA JULIO ANGEL TORREZ, JR., No. 1:24-cv-00362-SKO (HC) 12 Petitioner, ORDER GRANTING RESPONDENT’S MOTION TO DISMISS PETITION 13 v. ORDER DISMISSING PETITION AND 14 DIRECTING CLERK OF COURT TO L. LUNDY, Warden, ENTER JUDGMENT AND CLOSE CASE Respondent. ORDER DECLINING TO ISSUE 16 CERTIFICATE OF APPEALABILITY 18 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. All parties having consented to the jurisdiction of a United States Magistrate Judge, this case was assigned to the undersigned for all further proceedings in this action, including entry of final judgment, pursuant to 28 U.S.C. § 22 636(c)(1).

23 On March 28, 2024, Petitioner filed a petition for writ of habeas corpus in this Court. On May 15, 2024, Respondent filed a motion to dismiss the petition pursuant to Younger v. Harris, 401 U.S. 37 (1971). Petitioner did not file an opposition. Upon review of the pleadings, the Court will GRANT Respondent’s motion to dismiss and DISMISS the petition without prejudice.

27 ///// ///// I. DISCUSSION 2 A. Preliminary Review of Petition 3 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases.

6 The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001).

10 B. Abstention 11 Petitioner was convicted in the Kern County Superior Court on October 27, 2020, of attempted voluntary manslaughter, assault with a deadly weapon, infliction of corporal injuries on an intimate partner resulting in a traumatic condition, and misdemeanor child abuse. (Doc. 12-1 at 1.) He appealed to the California Court of Appeals. On January 17, 2023, the appellate court affirmed the convictions but remanded the matter for resentencing. (Doc. 12-2.) Petitioner petitioned for review in the California Supreme Court, and review was denied on March 29, 2023.

17 (Doc. 12-4.) The hearing on remand is currently scheduled for June 12, 2024. (Doc. 11-1 at 2-3.)

18 It is premature for this court to review Petitioner’s collateral attack on his conviction because direct review is still ongoing and there is no final judgment. A federal court’s jurisdiction to review the merits of a habeas petition commences, in pertinent part, on “the date on which the judgment became final by the conclusion of direct review.” 28 U.S.C. § 2244(d)(1)(A).

22 Under Younger v. Harris, 401 U.S. 37 (1971), federal courts may not enjoin pending state criminal proceedings except under extraordinary circumstances. Id. at 49, 53. Younger abstention prevents a court from exercising jurisdiction when three criteria are met: 1) there are ongoing state judicial proceedings; 2) an important state interest is involved; and 3) there is an adequate opportunity to raise the federal question at issue in the state proceedings. H.C. ex rel. Gordon v. Koppel, 203 F.3d 610, 613 (9th Cir. 2000).

28 The Younger criteria are satisfied here. First, remand for Petitioner’s resentencing is still pending, and thus, judgment is not final. The Supreme Court has stated: “‘Final judgment in a criminal case means sentence. The sentence is the judgment.’” Burton v. Stewart, 549 U.S. 147, 156 (2007) (quoting Berman v. United States, 302 U.S. 211, 212 (1937)). Second, resentencing proceedings implicate an important state interest in enforcing criminal laws without federal interference. See Kelly v. Robinson, 479 U.S. 36, 49 (1986) (“[T]he States’ interest in administering their criminal justice systems free from federal interference is one of the most powerful of the considerations that should influence a court considering equitable types of relief”) (citing Younger, 401 U.S. at 44-45). Finally, the California state courts provide an adequate forum in which Petitioner may pursue his claims. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15 (1987) (“[A] federal court should assume that state procedures will afford an adequate remedy, in the absence of unambiguous authority to the contrary.”). When the state proceedings have fully concluded and his conviction becomes final, Petitioner may seek federal habeas relief. See, e.g., Fellows v. Matteson, 2020 WL 4805022 (C.D. Cal. May 18, 2020) (prisoner “may seek federal habeas relief after his California state criminal proceedings, including his pending SB 620 motion in the California Court of Appeal, have concluded with a final judgment of conviction.”). For these reasons, the Court does not find that extraordinary circumstances warrant intervention.

17 The Court further notes that “courts in the Ninth Circuit have abstained under Younger when a habeas petitioner's state resentencing appeal is pending.” Duke v. Gastelo, 2020 WL 19 4341595, at *4 (C.D. Cal. June 24, 2020), adopted, 2020 WL 4339889 (C.D. Cal. July 28, 2020); Vanhook v. Burton, 2020 WL 5203439 (E.D. Cal. Sept. 1, 2020) (recommending denial of motion for stay and dismissal of federal habeas petition due to pending state appeal for resentencing); adopted, 2020 WL 5943013 (E.D. Cal. Oct. 7, 2020); Sauceda v. Sherman, 2020 23 WL 2510639, at *4 (C.D. Cal. Feb. 7, 2020) (recommending dismissal of a federal habeas petition due to pending state appeal for resentencing under Cal. P.C. § 1170.95), adopted, 2020 25 WL 1433678 (C.D. Cal. March 22, 2020); Phillips v. Neuschmid, 2019 WL 6312573, at *3 (C.D.

26 Cal. Oct. 18, 2019) (“courts implicitly find that granting federal habeas corpus relief would have the practical effect of enjoining or interfering with the ongoing state judicial proceeding, even where the state proceeding is limited to sentencing;” recommending dismissal of habeas petition due to pending state appeal for resentencing); adopted, 2019 WL 6310269 (C.D. Cal. Nov. 22, 2019) (collecting cases).

3 II. CERTIFICATE OF APPEALABILITY 4 A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only allowed in certain circumstances.

6 Miller-El v. Cockrell, 537 U.S. 322, 335-336 (2003). The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows: 8 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of 9 appeals for the circuit in which the proceeding is held.

10 (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or 11 trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an 13 appeal may not be taken to the court of appeals from— 14 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State 15 court; or 16 (B) the final order in a proceeding under section 2255.

17 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional 18 right.

19 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).

21 If a court denies a petitioner’s petition, the court may only issue a certificate of appealability when a petitioner makes a substantial showing of the denial of a constitutional right.

23 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).

28 The Court finds that Petitioner has not made the required substantial showing of the denial of a constitutional right to justify the issuance of a certificate of appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. Thus, the Court declines to issue a certificate of appealability.

5 III. ORDER 6 Based on the foregoing, IT IS HEREBY ORDERED: 7 1) Respondent’s motion to dismiss is GRANTED; 8 2) The petition is DISMISSED WITHOUT PREJUDICE as premature and barred by 9 Younger; 10 3) The Clerk of Court is DIRECTED to enter judgment and close the case; and 11 4) The Court DECLINES to issue a certificate of appealability.

12 This terminates this action in its entirety.

IT IS SO ORDERED.

15 Dated: June 11, 2024 /s/ Sheila K. Oberto .

UNITED STATES MAGISTRATE JUDGE