Opinion
No. CV 11-1582-PHX-DGC (MEA).
August 25, 2011
ORDER
On August 11, 2011, Petitioner Gary Louis Barocsi, who is confined in the Maricopa County Lower Buckeye Jail, filed a pro se Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Doc. 1) and paid the filing fee. For multiple reasons, this case will be dismissed without prejudice.
I. Relief Unavailable under 28 U.S.C. § 2254
II. Relief Unavailable under 28 U.S.C. § 2241 — Failure to Exhaust State Remedies
28 U.S.C. § 2254judgment Carden v. Montana626 F.2d 8283
Petitioner is scheduled to be sentenced on September 8, 2011.See
III. Younger Abstention
The abstention doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971), prevents a federal court in most circumstances from directly interfering with ongoing criminal proceedings in state court. Absent special circumstances, such as "proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown," a federal court will not entertain a pretrial habeas corpus petition. Carden, 626 F.2d at 84 (quoting Perez v. Ledesma, 401 U.S. 82, 85 (1971)). "[O]nly in the most unusual circumstances is a defendant entitled to have federal interposition by way of injunction or habeas corpus until after the jury comes in, judgment has been appealed from and the case concluded in the state courts." Id. at 83-84 (quoting Drury v. Cox, 457 F.2d 764, 764-65 (9th Cir. 1972)).
Petitioner has failed to show special or extraordinary circumstances indicating that he will suffer irreparable harm if this Court abstains from hearing his claims until after he has a chance to present his claims to the state courts. See Younger, 401 U.S. at 45-46; Carden, 626 F.2d at 83-84. This Court, therefore, will abstain from interfering in Petitioner's ongoing state-court criminal proceedings.
IV. Dismissal Without Prejudice
The § 2254 Petition and this action will be dismissed without prejudice. Petitioner may file another petition in a new habeas corpus action after all state criminal proceedings are completed and available state judicial remedies are exhausted. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999) ("[E]xcept in habeas petitions in life-sentence or capital cases, claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.").
IT IS ORDERED that Petitioner's § 2254 Petition (Doc. 1) and this action are dismissed without prejudice, and the Clerk of Court must enter judgment accordingly.
http://www.courtminutes.maricopa.gov/docs/Criminal/082011/m4829223.pdf