Dunsmore v. Gore

• Court: District Court, S.D. California
• Decided: February 26, 2020
• Docket: 3:20-cv-00310
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DARRYL DUNSMORE, Case No.: 20-cv-310-MMA (MSB)

12 Petitioner, ORDER DISMISSING PETITION 13 v. WITHOUT PREJUDICE 14 GORE, 15 Respondent. 16 17 Petitioner is a California prisoner serving a sentence of 22 years in state prison as a 18 result of a March 10, 2010 conviction and June 3, 2010 sentence in San Diego Superior 19 Court case number SCS 215653, proceeding pro se with a Petition for a Writ of Habeas 20 Corpus pursuant to 28 U.S.C. § 2254.1 Doc. No. 1. Petitioner is currently detained at the 21 San Diego County Jail awaiting resentencing and claims the San Diego County Jail has 22 violated his “civil rights” and denied him his “due process rights” by obstructing his 23

24 25 1 With respect to the length of sentence and year of conviction and sentence, the Court takes judicial notice of the abstract of judgment against Petitioner, which was filed as a 26 lodgment in a separate habeas corpus proceeding in this district. Doc. No. No. 28-2 at 27 42-45, CT 126-29, in S.D. Cal. Civil Case No. 13cv1193-GPC-PCL; see United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“[A] court may take judicial notice of its own 28 1 ability to proceed pro per by interfering with his access to legal resources, legal property, 2 meaningful access to courts, and accommodations required by the Americans with 3 Disabilities Act. Id. at 5–10. For the reasons discussed below, the Court DISMISSES 4 the Petition without prejudice. 5 FAILURE TO SATISFY FILING FEE REQUIREMENT 6 Petitioner has not paid the $5.00 filing fee and has not filed an application to 7 proceed in forma pauperis. Because this Court cannot proceed until Petitioner has either 8 paid the filing fee or qualified to proceed in forma pauperis, the Petition is subject to 9 dismissal without prejudice. See Rule 3(a), 28 U.S.C. foll. § 2254. 10 ABSTENTION 11 It is evident that Petitioner’s criminal case is ongoing in the state courts. Petitioner 12 indicates that his sentence has been reversed and the date of sentencing remains pending. 13 Doc. No. 1 at 1. As such, the court is barred from considering those claims pursuant to 14 Younger v. Harris, 401 U.S. 37 (1971). Under Younger, federal courts may not interfere 15 with ongoing state criminal proceedings absent extraordinary circumstances. Id. at 45- 16 46; see Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 431 17 (1982) (Younger “espouse[d] a strong federal policy against federal-court interference 18 with pending state judicial proceedings.”). The Ninth Circuit has explained that: 19 “Younger abstention is appropriate when: (1) there is ‘an ongoing state judicial 20 proceeding’; (2) the proceeding ‘implicate(s) important state interests’; (3) there is ‘an 21 adequate opportunity in the state proceedings to raise constitutional challenges’; and (4) 22 the requested relief ‘seek(s) to enjoin’ or has ‘the practical effect of enjoining’ the 23 ongoing state judicial proceeding.” Arevalo v. Hennessy, 882 F.3d 763, 765 (9th Cir. 24 2018) (quoting ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 758 25 (9th Cir. 2014)). 26 Each of those criteria are satisfied here. Petitioner acknowledges that his criminal 27 case is ongoing in state court. Doc. No. 1 at 1. There is no indication Petitioner is unable 28 to petition the state courts for the relief he seeks; indeed, Petitioner indicates he has 1 several petitions, applications or motions pending in various state courts. Jd. at 2-6. It is 2 || also clear that Petitioner’s state criminal proceedings involve important state interests. 3 || Finally, given that Petitioner seeks, among other things, “complete reversal of 4 || conviction,” see id. at 15, it is also evident that federal action would enjoin the ongoing 5 criminal proceeding. Accordingly, abstention is required. See Drury v. Cox, 457 6 || F.2d 764, 764-65 (9th Cir. 1972) (“[O]nly in the most unusual circumstances is a 7 defendant entitled to have federal interposition by way of injunction or habeas corpus 8 after the jury comes in, judgment has been appealed from and the case concluded in 9 || the state courts.”); see also Juidice v. Vail, 430 U.S. 327, 337 (1977) (holding that if 10 || Younger abstention applies, a court may not retain jurisdiction but should dismiss the 11 || action). 12 CONCLUSION AND ORDER 13 The Court DISMISSES the Petition without prejudice for failure to submit either 14 || the required filing fee or request to proceed in forma pauperis and because the Court must 15 || abstain from interference in Petitioner’s ongoing state criminal proceedings.” 16 || IT ISSO ORDERED. 17 || Dated: February 26, 2020 a ah Li —f ole: 18 Hon. Michael M. Anello 19 United States District Judge 20 21 99 To the extent Petitioner seeks to challenge the conditions of his confinement, he must do so, if at all, in a civil rights complaint filed pursuant to 42 U.S.C. § 1983. See Preiser 23 || v. Rodriguez, 411 U.S. 475, 499 (1973) (“[A] § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody.”); see also Nettles v. Grounds, 830 F.3d 922, 931 25 || (9th Cir. 2016) (en banc) (first quoting Preiser, 411 U.S. at 487; and then quoting Skinner 26 v. Switzer, 562 U.S. 521, 535 n.13 (2011)) [W]e hold that if a state prisoner’s claim does not lie at ‘the core of habeas corpus,’ it may not be brought in habeas corpus but 27 || must be brought, ‘if at all,’ under § 1983.”’). If Petitioner wishes to pursue claims 0g concerning the conditions of his confinement, he must file a new civil rights action pursuant to 42 U.S.C. § 1983 which will be given a new civil case number.