1

2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 AFSHIN BAHRAMPOUR, Case No. 2:19-cv-01524-GMN-VCF

6 Petitioner, v. ORDER 7 SHERIFF JOE LOMBARDO, 8 Respondent. 9 10 This habeas matter is before the Court on consideration of Petitioner Afshin Bahrampour’s 11 Application to Proceed In Forma Pauperis (ECF No. 1) as well as initial review under the Rules 12 Governing Section 2254 Cases.1 Bahrampour has submitted a pro se Petition for Writ of Habeas 13 Corpus (ECF No. 1-1). For the reasons discussed below, the Court denies the application for in 14 forma pauperis (“IFP”) status and dismisses the petition without prejudice. 15 A $5.00 filing fee is required to initiate a habeas action in a federal district court. The 16 Court may authorize a prisoner to begin an action without prepaying the filing fee if the prisoner 17 submits an IFP application on the approved form along with the appropriate supporting 18 documentation.

(a); LSR 1-1, LSR 1-2. Although Bahrampour submitted the 19 required form and supporting documents, the Court denies his IFP application based on the 20 multiple substantial defects explained in this order and resulting dismissal of his petition. 21 Pursuant to Habeas Rule 4, the assigned judge must examine the habeas petition and order 22 a response unless it “plainly appears” the petitioner is not entitled to relief. See also Valdez v. 23 Montgomery,

(9th Cir. 2019); Boyd v. Thompson,

(9th Cir. 24 1998). This rule allows courts to screen and dismiss petitions that are patently frivolous, vague, 25 conclusory, palpably incredible, or false. Hendricks v. Vasquez,

(9th Cir. 1990). 26 The court may also dismiss claims at screening for procedural defects. See Boyd,

. 27 1 All references to a “Habeas Rule” or the “Habeas Rules” in this order identify the Rules Governing Section 1 Bahrampour is charged in a grand jury indictment returned on July 29, 2019, in the Eighth 2 Judicial District Court for Clark County, Nevada (“state court”). State of Nevada v. Bahrampour, 3 Case No. C-19-342022-1.2 The indictment alleges nine felony and misdemeanor charges, 4 including: count one – act of terrorism or attempted act of terrorism; count two – third degree 5 arson; count three – fourth degree arson; count four – burglary motivated by bias or hated toward 6 the victim; count five – first degree arson motivated by bias or hated toward the victim; count six 7 – damage to property used for religious purposes; and counts seven, eight, and nine – third degree 8 arson motivated by bias or hated toward the victim. (ECF No. 1-2 at 1–6.) Bahrampour is 9 currently detained at the Clark County Detention Center. (ECF No. 1-1 at 1.) 10 The petition claims Bahrampour is bringing a pretrial challenge to the constitutionality of 11 the charges alleged in the state court indictment pursuant to

. (Id. at 31.) The 12 request for relief seeks dismissal of the grand jury indictment and a finding that selected criminal 13 statutes are void for vagueness. (Id.) Bahrampour alleges eight grounds for relief: (1) NRS 14 202.4415, which defines “act of terrorism,” is overbroad and void for vagueness; (2) count one of 15 the indictment, alleging acts of terrorism or attempted acts of terrorism, violates the laws of the 16 United States because it contains the disjunctive “or” in 26 separate instances in one paragraph, 17 which does not sufficiently provide a defendant notice to prepare a defense; (3) the arson charges 18 alleged in counts two and three of the indictment are not sufficient to establish a criminal act 19 because available video evidence shows a suspect burning his own property, rather than the 20 property of another person; (4) count four of the indictment is not supported by probably cause or 21 “slight or marginal evidence” to show that felonious intent, but results from “mere speculation”; 22 (5) count five of the indictment is not justified because no part of the building ignited; (6)(a) NRS 23 193.021, which defines “personal property,” is void for vagueness, and (6)(b) NRS 41.690, which 24 defines crimes “motivated by hated or bias,” violates Bahrampour’s free speech rights protected 25 by the First Amendment; (8) the use of “acoustic psycho-correction via bone conduction” and 26 2 This Court takes judicial notice of the proceedings in Bahrampour’s criminal case in the Eighth Judicial 27 District Court of the State of Nevada. The register of actions shows that trial is set for January 13, 2020. 1 other testing of “electronic products” on Bahrampour without his consent violates his liberty 2 interests in bodily integrity under the Due Process Clause of the Fourteenth Amendment and due 3 process rights under the Fifth Amendment; (8)

, which provides the federal 4 definitions for “international terrorism,” is impermissible vague and overbroad. (Id. at 8–32.) 5 Here, the petition is subject to multiple substantial defects. First, the petition improperly 6 seeks federal judicial intervention in a pending state criminal proceeding. The Younger abstention 7 doctrine prevents federal courts from enjoining pending state court criminal proceedings, even if 8 there is an allegation of a constitutional violation, unless there is an extraordinary circumstance 9 that creates a threat of irreparable injury. Younger v. Harris,

, 53–54 (1971). The 10 Supreme Court has instructed that “federal-court abstention is required” when there is “a parallel, 11 pending state criminal proceeding.” Sprint Commc’ns, Inc. v. Jacobs,

(2013) 12 (emphasis added). Irreparable injury does not exist if the threat to a petitioner’s federally protected 13 rights may be eliminated through his or her defense of the criminal case. Younger,

. 14 Second, Petitioner has not alleged or demonstrated that he fully exhausted his state court 15 remedies. A criminal defendant seeking federal habeas relief to restrain ongoing state criminal 16 proceedings must fully exhaust his state court remedies before presenting his constitutional claims 17 to the federal courts. E.g., Arevalo v. Hennessy,

, 764–67 (9th Cir. 2018) (finding 18 that California petitioner properly exhausted his state remedies by filing two motions in the trial 19 court, a habeas petition in the court of appeal, and a habeas petition in the state supreme court, 20 each of which was denied). The exhaustion requirement ensures that state courts, as a matter of 21 federal-state comity, will have the first opportunity to review and correct alleged violations of 22 federal constitutional guarantees. Coleman v. Thompson,

(1991). As a general 23 rule, a federal court will not entertain a petition seeking intervention in an ongoing state criminal 24 proceeding absent extraordinary circumstances, even when a petitioner’s claims were otherwise 25 fully exhausted in the state courts. E.g., Sherwood v. Tomkins,

(9th Cir. 1983); 26 Carden v. Montana,

, 83–85 (9th Cir. 1980). 27 No extraordinary circumstances are presented here. Bahrampour’s petition challenges the 1 To the extent that he faces possible limitations on his free speech rights from a conviction, his 2 situation is not different in substance from any criminal defendant facing potential loss of 3 constitutional rights in a pending criminal prosecution —including the most fundamental right, to 4 liberty. Defendants in state criminal cases routinely allege that state charges violate their 5 constitutional rights, which makes this a regular occurrence, not an extraordinary circumstance. 6 Bahrampour’s pretrial motion practice or defenses at trial may eliminate any threat to his federally 7 protected rights. Additionally, the state court docket indicates that a petition for writ of habeas 8 corpus is currently pending before the trial judge. It is clear that Bahrampour has not exhausted 9 his state court remedies. For these reasons, abstention and dismissal are required. 10 Given the multiple substantial defects presented, this matter will be dismissed without 11 prejudice. Dismissal of this action without prejudice will not materially impact the analysis of any 12 issue in a later filed habeas proceeding, or otherwise result in substantial prejudice. 13 IT IS ORDERED: 14 1. Petitioner Afshin Bahrampour’s Application to Proceed In Forma Pauperis (ECF 15 No. 1) is DENIED. 16 2. Bahrampour’s petition (ECF No. 1-1) is DISMISSED without prejudice. 17 3. A certificate of appealability is DENIED, as jurists of reason would not find dismissal 18 of the petition to be debatable or wrong. 19 4. The Clerk of Court shall CLOSE this case and ENTER final judgment accordingly, 20 dismissing this action without prejudice. 21 5. Bahrampour may not file any further documents in this closed case, save and except 22 for a motion seeking reconsideration of this order or relief from the judgment entered. 23 Any further filings or requests for relief must be presented in a new case with a new 24 case number.

25 DATED: September 9, 2019

26

27 GLORIA M. NAVARRO