Opinion
CV 21-4570-JVS (KK)
06-07-2021
Brandon Leon Bibbs v. Alex Villanueva
Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE
CIVIL MINUTES-GENERAL
Proceedings: Order to Show Cause Why This Action Should Not Be Dismissed (1) for Failure to State a Cognizable Habeas Claim or (2) Because Abstention Is Required
I.
INTRODUCTION
On May 16, 2021, Petitioner Brandon Leon Bibbs (“Bibbs”), who appears to be a detainee at Men's Central Jail in Los Angeles, California, constructively filed a pro se Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254 (“Section 2254”). ECF Docket No. (“Dkt.”) 1. Bibbs sets forth one ground for habeas relief: “The [P]etitioner has been deprived of his due process and equal protection of law to have assistance of counsel to his defense” in violation of his Sixth and Fourteenth Amendment rights. Id. at 2. As discussed below, the Court orders Bibbs to show cause why the Petition should not be dismissed (1) for failure to state a cognizable habeas claim or (2) because abstention is required under Younger v. Harris, 401 U.S. 37, 43-45 (1971) (“Younger”).
Under the “mailbox rule, ” when a pro se prisoner gives prison authorities a pleading to mail to court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted).
II.
DISCUSSION
A. THE PETITION IS SUBJECT TO DISMISSAL FOR FAILURE TO STATE A COGNIZABLE CLAIM
1. Applicable Law
Under Section 2254, “a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). “Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus; requests for relief turning on circumstances of confinement may be presented in” an action filed pursuant to 42 U.S.C. § 1983 (“Section 1983”). Muhammad v. Close, 540 U.S. 749, 750 (2004) (citations omitted).
Section 2254(a) uses the term “in custody” twice, with two different requirements. Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010). The first usage (i.e., that the petition be filed “in behalf of a person in custody”) requires that the petitioner is “under the conviction or sentence under attack at the time his petition is filed.” Id. at 978-79, 983 n.6 (quoting Resendiz v. Kovensky, 416 F.3d 952, 956 (9th Cir. 2005)). The second usage (i.e., that the application may be entertained “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States”) requires “a nexus between the petitioner's claim and the unlawful nature of the custody.” Id. at 978-80. “[W]hen a prisoner's claim would not necessarily spell speedier release, that claim does not lie at the core of habeas corpus and may be brought, if at all, under § 1983.” Skinner v. Switzer, 562 U.S. 521, 535 n.13 (2011) (internal quotation marks and citations omitted); see also Heck v. Humphrey, 512 U.S. 477, 481-83 (1994).
2. Analysis
Here, the Petition does not appear to challenge any conviction. See dkt. 1. Rather, the Petition appears to challenge various aspects of the conditions of Bibbs' confinement, such as “his access to the law library, legal phone calls, and legal supplies.” Id. at 2. The Petition, therefore, does not challenge the validity of Bibbs' confinement or particulars affecting its duration. See Muhammad, 540 U.S. at 750. The Petition, instead, seeks relief turning on circumstances of confinement that may be presented, if at all, in an action filed pursuant to Section 1983. Id. Accordingly, the Petition is subject to dismissal for failure to state a cognizable habeas claim.
When a prisoner's claim is not cognizable in habeas corpus, the Court may construe the petition as a civil rights complaint. See Wilwording v. Swenson, 404 U.S. 249, 251 (1971), superseded by statute on other grounds as recognized in Woodford v. Ngo, 548 U.S. 81, 84 (2006). Here, however, the Petition is not amenable to conversion on its face to a civil rights complaint. Rather, converting Bibbs' claims to a civil rights action would impose burdensome constraints - such as a significantly higher filing fee, the means of collecting it, and restrictions on future filings - that could make conversion more disadvantageous to Bibbs than a dismissal of his habeas petition without prejudice to filing a civil rights complaint. See Nettles, 830 F.3d at 936. The Court, thus, declines to recharacterize Bibbs' Petition as a civil rights complaint.
B. THE PETITION IS SUBJECT TO DISMISSAL BECAUSE YOUNGER ABSTENTION IS REQUIRED
1. Applicable Law
When a state prisoner “is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). “[T]he general grant of habeas authority in [28 U.S.C. § 2241] is available for challenges by a state prisoner who is not in custody pursuant to a state court judgment [such as] a defendant in pre-trial detention[.]” Stow v. Murashige, 389 F.3d 880, 886 (9th Cir. 2004) (citation omitted) (holding pretrial detainee's request for federal habeas relief under 28 U.S.C. § 2241(c)(3) is properly brought); Rosenbalm v. Mendocino Superior Ct., No. C 06-7412 SI(PR), 2007 WL 878522, at *1 (N.D. Cal. Mar. 21, 2007) (“This court may entertain a petition for a writ of habeas corpus under 28 U.S.C. § 2241(c)(3) by a person who is in custody but not yet convicted or sentenced.”).
Principles of comity and federalism, however, require federal courts to abstain from interfering with pending state court proceedings. See Younger, 401 U.S. at 43-45. The Ninth Circuit has held abstention is appropriate when: (1) there is “an ongoing state judicial proceeding”; (2) the proceeding “implicate[s] important state interests”; (3) there is “an adequate opportunity in the state proceedings to raise constitutional challenges”; and (4) the requested relief “seek[s] to enjoin” or has “the practical effect of enjoining” the ongoing state judicial proceeding. Arevalo v. Hennessy, 882 F.3d 763, 765 (9th Cir. 2018) (citing ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 758 (9th Cir. 2014)).
“Extraordinary circumstances, ” may warrant exception to the “fundamental policy against federal interference with state criminal prosecutions.” Younger, 401 U.S. at 46, 53-54; Brown v. Ahern, 676 F.3d 899, 900-01 (9th Cir. 2012) (holding “abstention principles . . . prohibit a federal court from considering a pre-conviction habeas petition that seeks preemptively to litigate an affirmative constitutional defense unless the petitioner can demonstrate that ‘extraordinary circumstances' warrant federal intervention” (citing Carden v. State of Mont., 626 F.2d 82, 83 (9th Cir. 1980))). To demonstrate an exception to Younger, a petitioner must show: (1) he would suffer irreparable harm that is “both great and immediate” if the federal court declines jurisdiction; (2) there is bad faith or harassment, on the part of state, in prosecuting him; or (3) the state court system is biased against Petitioner's federal claim. See Middlesex Cnty. Ethics Comm'n v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982); Kugler v. Helfant, 421 U.S. 117, 124-25 (1975); Brown, 676 F.3d at 901 (citing Carden, 626 F.2d at 83).
2. Analysis
As an initial matter, Bibbs is a pretrial detainee. See dkt. 1 at 1 (stating Bibbs must “prepare for trial” that is “set for June 29” in Los Angeles County Superior Court in case no. VA134204). Accordingly, to the extent Bibbs raises a cognizable habeas claim, the Petition is governed by 28 U.S.C. § 2241(c)(3). See Stow, 389 F.3d at 886.
While it is not clear whether Bibbs also claims his right to represent himself or his right to counsel is being violated, the Court finds the Petition is subject to dismissal because Younger abstention is required. Dkt. 1 at 2 (stating Bibbs “has been deprived of his . . . [right] to have assistance of counsel to his defense”, but also stating Bibbs' “pro per status was terminated” pursuant to a Los Angeles County Superior Court order on February 4, 2021 and that as a result, Bibbs cannot access the “law library, legal phone calls, and legal supplies”). First, Bibbs has an ongoing state judicial proceeding as he awaits trial in his criminal case in Los Angeles County Superior Court in case no. VA134204. Id. at 1. Second, the resolution of state criminal proceedings clearly implicates important state interests. See Kelly v. Robinson, 479 U.S. 36, 49 (1986) (“The right to formulate and enforce penal sanctions is an important aspect of the sovereignty retained by the States.” (citing Younger, 401 U.S. at 46)); Middlesex, 457 U.S. at 432 (“Proceedings necessary for the vindication of important state policies or for the functioning of the state judicial system also evidence the state's substantial interest in the litigation.”). Third, Bibbs has “an adequate opportunity in the state proceedings to raise constitutional challenges, ” either at the trial or appellate level, and there appears to be nothing preventing Bibbs from doing so. See Arevalo, 882 F.3d at 765. Fourth, habeas relief from this Court in the form of release would have the “practical effect” of enjoining the state court proceedings. See Bowell v. Paramo, No. CV-17-9313-TJH (MAA), 2018 WL 4735721, at *4 (C.D. Cal. Aug. 6, 2018), report and recommendation adopted, No. CV-17-9313-TJH-MAA, 2018 WL 4698250 (C.D. Cal. Sept. 28, 2018), certificate of appealability denied, No. 18-56319, 2018 WL 6978341 (9th Cir. Dec. 20, 2018) (finding if the court were to grant emergency release, “it necessarily would entail interference because the ongoing state proceeding effectively would be terminated” (citing San Jose Silicon Valley Chamber of Com. Pol. Action Comm. v. City of San Jose, 546 F.3d 1087, 1095-96 (9th Cir. 2008))).
Bibbs also states he submitted a grievance regarding his claim on the same day he filed the Petition and has yet to receive a disposition. Dkt. 1 at 2.
Moreover, Bibbs fails to identify any “extraordinary circumstances” warranting the Court's interference as an exception under Younger. Bibbs does not allege he has been the subject of harassment or that that his continued prosecution is in bad faith and without hope of obtaining a valid conviction. See Brown, 676 F.3d at 901. Furthermore, although Bibbs states he “will be prejudiced before a jury” and suffer “irreparable harm, ” these allegations do not rise to the level of irreparable harm required to warrant this Court's intervention. See Younger, 401 U.S. at 46, 53-53 (finding cost, anxiety, and inconvenience of criminal defense is not the kind of special circumstance or irreparable harm that would justify federal intervention); Wabnitz v. South, No. 8:20-cv-00188-MWF (SHK), 2020 WL 3620801, at *3 (C.D. Cal. Feb. 11, 2020), report and recommendation adopted sub nom. Wabnitz v. Unknown, 2020 WL 3619010 (C.D. Cal. July 1, 2020) (finding petitioner's allegations, which appear to center around his frustration regarding his inability to represent himself in state court proceedings, fail to identify “extraordinary circumstances” warranting the court's interference).
Hence, under the circumstances of the instant case, abstention under Younger appears to be required.
III.
ORDER
For the above reasons, the Petition appears subject to dismissal. Bibbs is therefore ORDERED TO SHOW CAUSE why the Court should not dismiss the Petition (1) for failure to state a cognizable habeas claim or (2) because abstention is required under Younger. Bibbs' response to this Order must be received no later than June 28, 2021. Bibbs must respond to this Order by choosing one of the following options:
1. Option One: Bibbs may file a written response (1) explaining why Bibbs' claims are cognizable on habeas review with any supporting documents or (2) informing the Court of any reason demonstrating Bibbs is entitled to raise his right to self-representation or counsel on federal habeas corpus at this time or extraordinary circumstances warranting this Court's immediate intervention in Bibbs' state criminal proceedings.
2. Option Two: Bibbs may file a First Amended Petition curing the above referenced deficiencies. The First Amended Petition shall be complete in itself. It shall not refer in any manner to the original Petition. In other words, Bibbs must start over when preparing the First Amended Petition. If Bibbs chooses to file a First Amended Petition, he must clearly designate on the face of the document that it is the “First Amended Petition, ” it must bear the docket number assigned to this case, and it must be retyped or rewritten in its entirety, preferably on the court-approved form.
3. Option Three: Bibbs may voluntarily dismiss this action without prejudice. Bibbs may request a voluntary dismissal of this action pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court has attached a Notice of Dismissal form. However, the Court warns any dismissed claims may be later subject to the statute of limitations, because “[a] 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1).
The Court expressly warns Bibbs that failure to timely file a response to this Order will result in the Court dismissing this action with prejudice for his failure to state a cognizable claim and/or failure to comply with court orders and failure to prosecute. See Fed.R.Civ.P. 41(b).
The Clerk of Court is directed to serve a copy of this Order and the Petition, dkt. 1, on Bibbs at his current address of record and provide Bibbs with a blank form Petition for his use in filing a First Amended Petition.
IT IS SO ORDERED.
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