Opinion
CV 21-2400-DSF (E)
06-07-2021
CHAD WILLIAM JIMENEZ, Petitioner, v. RAYMOND MADDEN, Warden, Respondent.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Dale S. Fischer, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
On March 15, 2021, Petitioner filed a “Petition for Writ of Habeas Corpus By a Person in State Custody.” On May 5, 2021, Respondent filed a “Motion to Dismiss Petition, etc., ” (“Motion to Dismiss”). The Motion to Dismiss asserts that the Court should dismiss the Petition based on abstention under Younger v. Harris, 401 U.S. 37 (1971). On May 27, 2021, Petitioner filed an “Opposition to Motion to Dismiss Petition, etc.” (“Opposition”).
BACKGROUND
In 2017, a Superior Court jury found Petitioner guilty of two counts of assault with a semiautomatic firearm, one count of possession of a firearm by a felon and one count of attempted second degree robbery (Petition, p. 2; Respondent's Lodgment 8, pp. 18-20; see People v. Jimenez, 2019 WL 2353434, at *1 (Cal.App. June 4, 2019). The jury found true certain firearms allegations and gang allegations (Petition, p. 2; Respondent's Lodgment 8, pp. 18-20; see People v. Jimenez, 2019 WL 2353434, at *1). The Superior Court found that Petitioner had suffered a prior conviction qualifying as a “strike” under California's Three Strikes Law, California Penal Code sections 667(b) - (i) and 1170.12 and a prior serious felony conviction within the meaning of California Penal Code section 667(a)(1) (Petition, p. 2; Respondent's Lodgment 8, p. 22; see People v. Jimenez, 2019 WL 2353434, at *1). Petitioner received a sentence of thirty-two years and four months (Respondent's Lodgment 18, pp. 22-25; see People v. Jimenez, 2019 WL 2353434, at *1).
On June 4, 2019, the California Court of Appeal remanded the case “for the limited purpose of permitting the trial court to consider exercising its discretion to strike the five-year enhancement imposed under section 667, subdivision (a)(1), pursuant to recently enacted Senate Bill 1393, ” but the Court of Appeal otherwise affirmed (Respondent's Lodgment 1, p. 41; see People v. Jimenez, 2019 WL 2353434, at *14). The California Supreme Court summarily denied Petitioner's petition for review on September 11, 2019 (Respondent's Lodgments 2, 3). The Court of Appeal's remittitur was filed in the Superior Court on September 18, 2019 (Respondent's Lodgment 8, p. 26).
“On September 30, 2018, the Governor signed Senate Bill 1393 which, effective January 1, 2019, amended sections 667(a) and 1385(b) to allow a court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes.” People v. Garcia, 28 Cal.App. 5th 961, 971, 239 Cal.Rptr.3d 558 (2018) (citation omitted). Senate Bill 1393 applies retroactively only to judgments not yet final as of the statute's January 1, 2019 effective date. Id. at 971-72.
On or about April 29, 2020, Petitioner filed a habeas corpus petition in the Superior Court, which that court denied on August 12, 2020 (Respondent's Lodgment 8, pp. 29-33). On August 31, 2020, Petitioner filed a habeas corpus petition in the California Court of Appeal, which that court denied on September 25, 2020 (Respondent's Lodgment 5). On October 13, 2020, Petitioner filed a habeas corpus petition in the California Supreme Court, which that court denied summarily on February 10, 2021 (Respondent's Lodgments 6, 7).
Meanwhile, the Superior Court continued the resentencing hearing several times (see Respondent's Lodgment 8, pp. 26-29, 33-34). Some of these continuances resulted from requests by Petitioner's counsel and others resulted from the Covid-19 pandemic (id.). The resentencing hearing presently is scheduled to occur on July 28, 2021 (Respondent's Lodgment 8, p. 34; see also Opposition, p. 5).
DISCUSSION
Federal courts generally do not intervene in ongoing state court criminal proceedings except in “extraordinary circumstances.” Younger v. Harris, 401 U.S. 37, 43-54 (1971) (“Younger”); Bean v. Matteucci, 986 F.3d 1128, 1133 (9th Cir. 2021). “[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.” Carden v. Montana, 626 F.2d 82, 83-84 (9th Cir.), cert. denied, 449 U.S. 1014 (1980) (citation and quotations omitted). Younger generally applies “when: (1) there is an ongoing state judicial proceeding; (2) the proceeding implicates important state interests; (3) there is an adequate opportunity in the state proceedings to raise constitutional challenges; and (4) the requested relief seeks to enjoin or has the practical effect of enjoining the ongoing state judicial proceeding.” Bean v. Matteucci, 986 F.3d at 1133 (citations omitted). However, “even where the Younger factors are satisfied, ‘federal courts do not invoke [Younger] if there is a ‘showing of bad faith, harassment, or some other extraordinary circumstance that would make abstention inappropriate.''” Id. (citations omitted).
Younger abstention is appropriate here. The state court resentencing proceeding was pending when Petitioner filed the Petition, and that proceeding remains pending. See Page v. King, 932 F.3d 898, 902 (9th Cir. 2019) (“Where, as here, no final judgment has been entered in state court, the state court proceeding is plainly ongoing for purposes of Younger.”) (citation and quotations omitted); see also Burton v. Stewart, 549 U.S. 147, 156 (2007) (“Final judgment in a criminal case means sentence. The sentence is the judgment.”) (citation and quotations omitted). The ongoing state proceedings implicate important state interests. See Kelly v. Robinson, 479 U.S. 36, 49 (1986) (“the 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).
Petitioner does not argue, and the record does not show, that Petitioner lacks an adequate opportunity to raise any constitutional challenges in the state court. See Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982) (“[w]here vital state interests are involved, a federal court should abstain unless the state law clearly bars the interposition of the constitutional claims”) (citations and quotations omitted).
To the extent Petitioner seeks federal habeas relief prior to the conclusion of the pending resentencing proceedings and any subsequent appeal therefrom, any such relief would threaten interference in the ongoing state criminal proceedings. See Joe v. Muniz, 2018 WL 6025841, at *3 (C.D. Cal. Nov. 16, 2018) (“to the extent petitioner seeks to have this Court preemptively issue an order before he has even been resentenced or appealed such a sentence if warranted, such an order would threaten interference in the state criminal proceedings in a manner disapproved of in Younger”) (citation omitted). Indeed, federal courts in this circuit, including the Ninth Circuit itself, have applied Younger when a petitioner challenges his or her conviction in federal habeas proceedings during the pendency of state resentencing proceedings, including resentencing proceedings concerning the application of Senate Bill 1393. See Edelbacher v. Calderon, 160 F.3d 582, 582-83 (9th Cir. 1998) (“When there is a pending state penalty retrial and no unusual circumstances, we decline to depart from the general rule that a petitioner must await the outcome of the state proceedings before commencing his federal habeas corpus action.”); Barnette v. Atchely, 2021 WL 1845537 (E.D. Cal. Apr. 12, 2021); Brooks v. Madden, 2021 WL 1200896 (C.D. Cal. Feb. 18, 2021), adopted, 2021 WL 1200047 (C.D. Cal. March 30, 2021); Miller v. Lynch, 2020 WL 6811490 (E.D. Cal. Aug. 26, 2020), adopted, 2020 WL 6800420, E.D. Cal., Nov. 19, 2020) (resentencing pursuant to Senate Bill 1393); Mitchell v. Johnson, 2020 WL 2020 WL 4534958 (C.D. Cal. Aug. 6, 2020) (same); Suares v. Johnson, 2020 WL 5665664 (C.D. Cal. June 11, 2020), adopted, 2020 WL 5658713 (C.D. Cal. Sept. 22, 2020); Phillips v. Neuschmid, 2019 WL 6312573, at *2 (C.D. Cal. Oct. 18, 2019), adopted, 2019 WL 6310269 (C.D. Cal. Nov. 22, 2019) (collecting cases); Lesopravsky v. Warden, 2018 WL 2085333, at *4 (C.D. Cal. May 3, 2018) (“Since Edelbacher, district courts have generally abstained under Younger when a habeas petitioner was still challenging his sentence in state court.”) (collecting cases).
Petitioner has failed to demonstrate the applicability of an exception to Younger, and the record discloses no basis for any exception. Petitioner has not made any “showing of bad faith, harassment, or some other extraordinary circumstance that would make abstention inappropriate.” Bean v. Matteucci, 986 F.3d at 1133 (citations and quotations omitted). Petitioner does not argue, and the record does not show, that there has been any extraordinary, unreasonable delay in the state proceedings. See Mitchell v. Johnson, 2020 WL 4534958, at *2 (“Petitioner has not shown unusual circumstances that justify a departure from the general rule. It is true that the COVID-19 pandemic is an unusual circumstance, but the delay of about a year and a half is, so far, not extreme.”) (citation omitted); compare Phillips v. Vasquez, 56 F.3d 1030, 1035-38 (9th Cir.), cert. denied, 516 U.S. 1032 (1995) (extraordinary delay experienced by capital habeas petitioner in seeking state court review justified consideration of his guilt phase claims in federal court even though the death sentence was still under review in the state courts, where almost fifteen years had elapsed since petitioner's conviction and the pending state sentencing proceedings offered “no end in sight”) and Edelbacher v. Calderon, 160 F.3d at 585-86 (distinguishing Phillips v. Vasquez as a capital case involving “ineffective state process” resulting in “unreasonably long delay” in the state courts).
In the Opposition, Petitioner does not appear to dispute the applicability of Younger. Rather, Petitioner asks the Court to stay the Petition pursuant to Rhines v. Weber, 544 U.S. 269 (2005) (“Rhines”) until Petitioner's state court conviction is final (Opposition, p. 4). Rhines held that in “limited circumstances” a District Court has discretion to stay and hold in abeyance a mixed habeas corpus petition pending exhaustion of state remedies. Rhines, 544 U.S. at 277-78. Petitioner concedes that the Petition is not mixed, but Petitioner argues that his “situation is similar” (Opposition, p. 4).
Where Younger abstention is appropriate, a district court “cannot refuse to abstain, retain jurisdiction over the action, and render a decision on the merits after the state proceedings have ended.” Beltran v. State of Calif., 871 F.2d 777, 782 (9th Cir. 1988). Younger abstention requires dismissal of the federal action. See Gibson v. Berryhill, 411 U.S. 564, 577 (1973) (“Younger v. Harris contemplates the outright dismissal of the federal suit . . .”); Beltran v. State of Calif., 871 F.2d at 782 (“Younger abstention requires dismissal of the federal action”) (original emphasis). Accordingly, Petitioner may not obtain a Rhines stay as an alternative to a Younger dismissal. Id.; see Pellecer v. Robertson, 2021 WL 1949394, at *4 (C.D. Cal. Mar. 12, 2021), adopted, 2021 WL 1947235 (C.D. Cal. May 14, 2021) (Rhines stay unavailable where Younger abstention appropriate).
Petitioner expresses concern regarding the one-year statute of limitations set forth in 28 U.S.C. section 2244(d) (see Opposition, p. 4). Petitioner need not be concerned at this time. The one-year statute of limitations will not begin to run any earlier than the date Petitioner's conviction, including his sentence, becomes final. See 2244(d)(1)(A); Burton v. Stewart, 549 U.S. at 156-57.
RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered dismissing the action without prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No. notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
DALE S. FISCHER UNITED STATES DISTRICT JUDGE
Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which any objections have been made. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.
IT IS ORDERED that Judgment be entered dismissing the action without prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on Petitioner and counsel for Respondent.
LET JUDGMENT BE ENTERED ACCORDINGLY.
JUDGMENT
Pursuant to the Order Accepting Findings, Conclusions and Recommendations of United States Magistrate Judge, IT IS ADJUDGED that the action is dismissed without prejudice.