1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BILLY RAY JOHNSON, Case No. 1:21-cv-00598-HBK 12 Petitioner, FINDINGS AND RECOMMENDATIONS THAT COURT ABSTAIN FROM 13 v. EXERCISING JURISDICTION AND DISMISS PETITION WITHOUT 14 STUART SHERMAN, PREJUDICE1 15 Respondent. OBJECTIONS DUE IN THIRTY DAYS 16 (Doc. No. 1) 17 ORDER DIRECTING CLERK TO ASSIGN CASE TO DISTRICT JUDGE 18 19 Petitioner Billy Ray Johnson, a state prisoner proceeding pro se, initiated this action by 20 filing a petition for writ of habeas corpus under 28 U.S.C. § 2254 on April 9, 2021. (Doc. No. 1). 21 This matter is before the Court for preliminary review under Rule 4 of the Rules Governing 22 Section 2254 Cases in the United States District Court (Habeas Rules). See Habeas Rules, Rule 23 4; 28 U.S.C. § 2243. Under Rule 4, a district court must dismiss a habeas petition if it “plainly 24 appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 25 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). As more fully 26 explained below, because petitioner’s appeal of his resentencing decision remains before the state 27 1 The undersigned submits these factual finding and recommendation to the District Court pursuant to 28 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Cal. 2019). 1 appellate court, the undersigned recommends the court abstain from exercising jurisdiction and 2 dismiss the petition without prejudice to refiling after petitioner’s appellate proceedings have 3 concluded. 4 I. BACKGROUND 5 Petitioner challenges his 2015 convictions after a jury trial for first-degree robbery, assault 6 with a firearm, first-degree burglary, possession of firearm by a felon, false imprisonment, assault 7 with the intent to commit rape, rape, assault with a firearm, forcible lewd act with a child, 8 unlawful discharge of a firearm, and felon in possession of ammunition for which he was 9 sentenced to life without parole by the Kern County Superior Court in case no. BF151825A. 10 (Doc. No. 1 at 1). Petitioner notes his convictions were affirmed but acknowledges his case was 11 remanded for resentencing on the firearm enhancement and his appeal of his resentencing remains 12 pending. (Id. at 2). Indeed, Petitioner lodges an appeal of the trial court’s resentencing decision 13 on February 27, 2020 and, as of the date of this Report and Recommendation, petitioner’s appeal 14 remains pending before the California Court of Appeal. See People v. Johnson, No. F080848 15 (Cal. 5th App. Feb. 28, 2020).2 16 II. APPLICABLE LAW 17 For purposes of § 2254 habeas review, a conviction is final when “a judgment of 18 conviction has been rendered, the availability of appeal exhausted, and the time for a petition for 19 certiorari elapsed or a petition for certiorari finally denied.” Griffith v. Kentucky, 478 U.S. 314, 20 321 n. 6 (1987). The seminal case of Younger v. Harris, 401 U.S. 37, 44 (1971) applies when a 21 petitioner’s conviction is not yet final. In Younger, the Supreme Court held that a federal court 22 generally cannot interfere with pending state criminal proceedings. This holding, commonly 23 referred to as the Younger abstention doctrine, is based on the principle of federal-state comity 24 and is appropriate when: “(1) there is an ongoing state judicial proceeding; (2) the proceeding 25 implicates important state interests; (3) there is an adequate opportunity in the state proceedings 26 2 27 https://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=5&doc_id=2313716&doc_n o=F080848&request_token=NiIwLSEmTkw7W1BNSCM9UEpIIDg7UExbKyJeJz5RMCAgCg%3D%3D 28 1 to raise constitutional challenges; and (4) the requested relief seeks to enjoin or has the practical 2 effect of enjoining the ongoing state judicial proceeding.” Page v. King, 932 F.3d 898, 901–902 3 (9th Cir. 2019) (quoting Arevalo v. Hennessy, 882 F.3d 763, 765 (9th Cir. 2018) (alterations and 4 internal quotation marks omitted)). In the habeas context, “[w]here . . . no final judgment has 5 been entered in state court, the state court proceeding is plainly ongoing for purposes of 6 Younger.” Id. at 902. Absent rare circumstances, a district court must dismiss such actions. See 7 Cook v. Harding, 190 F. Supp. 3d 921, 935, 938 (C.D. Cal. 2016), aff’d, 879 F.3d 1035 (9th Cir. 8 2018); Perez v. Ledesma, 401 U.S. 82, 85 (1971) (“Only in cases of proven harassment or 9 prosecutions undertaken by state officials in bad faith without hope of obtaining a valid 10 conviction and perhaps in other extraordinary circumstances where irreparable injury can be 11 shown” is federal intervention in an on-going state criminal proceeding appropriate.). 12 In circumstances where an appeal on a resentencing decision is pending, courts in the 13 Ninth Circuit generally abstain from exercising jurisdiction under Younger. See Phillips v. 14 Neuschmid, No. 2:19-cv-03225-RGK (AFM), 2019 U.S. Dist. LEXIS 204615, at *5 (C.D. Cal. 15 2019). “In so doing, these courts implicitly find that granting federal habeas corpus relief would 16 have the practical effect of enjoining or interfering with the ongoing state judicial proceeding, 17 even where the state proceeding is limited to sentencing.” Id.; see also Johnson v. Anglea, No. 18 2:20-cv-01830 KJM DB P, 2021 U.S. Dist. LEXIS 16654, at *8-9 (E.D. Cal. 2021) (“The fact 19 that petitioner was awaiting a ruling which could alter his sentencing means the judgement in his 20 case was not final and there remained pending proceedings.”); Arlonzo Jackson Banks v. Lynch, 21 No. 2:20-cv-0827 TLN KJN P, 2020 U.S. Dist. LEXIS 206470, at *6 (E.D. Cal. 2020) (same). 22 III. ANALYSIS 23 All four of the Younger criteria are satisfied. First, petitioner’s state proceedings remain 24 ongoing. See Gilbertson v. Albright, 381 F.3d 965, 969 n.4 (9th Cir. 2004) (en banc) (“The 25 critical date” for determining whether a state proceeding is “ongoing” is “the date the federal 26 action is filed.”). See also Nationwide Biweekly Admin. Inc. v. Owen, 873 F.3d 716, 728 (9th Cir. 27 2017) (state proceedings are “ongoing” if the proceedings commenced “before any proceedings 28 of substance on the merits have taken place in federal court.”). Petitioner lodged his state appeal 1 on February 27, 2020, which remains pending, and respondent has not yet been directed to file a 2 response to the petition. Second, the pending state court criminal proceedings clearly implicate 3 important state interests. Kelly v. Robinson, 479 U.S. 36
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BILLY RAY JOHNSON, Case No. 1:21-cv-00598-HBK 12 Petitioner, FINDINGS AND RECOMMENDATIONS THAT COURT ABSTAIN FROM 13 v. EXERCISING JURISDICTION AND DISMISS PETITION WITHOUT 14 STUART SHERMAN, PREJUDICE1 15 Respondent. OBJECTIONS DUE IN THIRTY DAYS 16 (Doc. No. 1) 17 ORDER DIRECTING CLERK TO ASSIGN CASE TO DISTRICT JUDGE 18 19 Petitioner Billy Ray Johnson, a state prisoner proceeding pro se, initiated this action by 20 filing a petition for writ of habeas corpus under 28 U.S.C. § 2254 on April 9, 2021. (Doc. No. 1). 21 This matter is before the Court for preliminary review under Rule 4 of the Rules Governing 22 Section 2254 Cases in the United States District Court (Habeas Rules). See Habeas Rules, Rule 23 4; 28 U.S.C. § 2243. Under Rule 4, a district court must dismiss a habeas petition if it “plainly 24 appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 25 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). As more fully 26 explained below, because petitioner’s appeal of his resentencing decision remains before the state 27 1 The undersigned submits these factual finding and recommendation to the District Court pursuant to 28 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Cal. 2019). 1 appellate court, the undersigned recommends the court abstain from exercising jurisdiction and 2 dismiss the petition without prejudice to refiling after petitioner’s appellate proceedings have 3 concluded. 4 I. BACKGROUND 5 Petitioner challenges his 2015 convictions after a jury trial for first-degree robbery, assault 6 with a firearm, first-degree burglary, possession of firearm by a felon, false imprisonment, assault 7 with the intent to commit rape, rape, assault with a firearm, forcible lewd act with a child, 8 unlawful discharge of a firearm, and felon in possession of ammunition for which he was 9 sentenced to life without parole by the Kern County Superior Court in case no. BF151825A. 10 (Doc. No. 1 at 1). Petitioner notes his convictions were affirmed but acknowledges his case was 11 remanded for resentencing on the firearm enhancement and his appeal of his resentencing remains 12 pending. (Id. at 2). Indeed, Petitioner lodges an appeal of the trial court’s resentencing decision 13 on February 27, 2020 and, as of the date of this Report and Recommendation, petitioner’s appeal 14 remains pending before the California Court of Appeal. See People v. Johnson, No. F080848 15 (Cal. 5th App. Feb. 28, 2020).2 16 II. APPLICABLE LAW 17 For purposes of § 2254 habeas review, a conviction is final when “a judgment of 18 conviction has been rendered, the availability of appeal exhausted, and the time for a petition for 19 certiorari elapsed or a petition for certiorari finally denied.” Griffith v. Kentucky, 478 U.S. 314, 20 321 n. 6 (1987). The seminal case of Younger v. Harris, 401 U.S. 37, 44 (1971) applies when a 21 petitioner’s conviction is not yet final. In Younger, the Supreme Court held that a federal court 22 generally cannot interfere with pending state criminal proceedings. This holding, commonly 23 referred to as the Younger abstention doctrine, is based on the principle of federal-state comity 24 and is appropriate when: “(1) there is an ongoing state judicial proceeding; (2) the proceeding 25 implicates important state interests; (3) there is an adequate opportunity in the state proceedings 26 2 27 https://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=5&doc_id=2313716&doc_n o=F080848&request_token=NiIwLSEmTkw7W1BNSCM9UEpIIDg7UExbKyJeJz5RMCAgCg%3D%3D 28 1 to raise constitutional challenges; and (4) the requested relief seeks to enjoin or has the practical 2 effect of enjoining the ongoing state judicial proceeding.” Page v. King, 932 F.3d 898, 901–902 3 (9th Cir. 2019) (quoting Arevalo v. Hennessy, 882 F.3d 763, 765 (9th Cir. 2018) (alterations and 4 internal quotation marks omitted)). In the habeas context, “[w]here . . . no final judgment has 5 been entered in state court, the state court proceeding is plainly ongoing for purposes of 6 Younger.” Id. at 902. Absent rare circumstances, a district court must dismiss such actions. See 7 Cook v. Harding, 190 F. Supp. 3d 921, 935, 938 (C.D. Cal. 2016), aff’d, 879 F.3d 1035 (9th Cir. 8 2018); Perez v. Ledesma, 401 U.S. 82, 85 (1971) (“Only in cases of proven harassment or 9 prosecutions undertaken by state officials in bad faith without hope of obtaining a valid 10 conviction and perhaps in other extraordinary circumstances where irreparable injury can be 11 shown” is federal intervention in an on-going state criminal proceeding appropriate.). 12 In circumstances where an appeal on a resentencing decision is pending, courts in the 13 Ninth Circuit generally abstain from exercising jurisdiction under Younger. See Phillips v. 14 Neuschmid, No. 2:19-cv-03225-RGK (AFM), 2019 U.S. Dist. LEXIS 204615, at *5 (C.D. Cal. 15 2019). “In so doing, these courts implicitly find that granting federal habeas corpus relief would 16 have the practical effect of enjoining or interfering with the ongoing state judicial proceeding, 17 even where the state proceeding is limited to sentencing.” Id.; see also Johnson v. Anglea, No. 18 2:20-cv-01830 KJM DB P, 2021 U.S. Dist. LEXIS 16654, at *8-9 (E.D. Cal. 2021) (“The fact 19 that petitioner was awaiting a ruling which could alter his sentencing means the judgement in his 20 case was not final and there remained pending proceedings.”); Arlonzo Jackson Banks v. Lynch, 21 No. 2:20-cv-0827 TLN KJN P, 2020 U.S. Dist. LEXIS 206470, at *6 (E.D. Cal. 2020) (same). 22 III. ANALYSIS 23 All four of the Younger criteria are satisfied. First, petitioner’s state proceedings remain 24 ongoing. See Gilbertson v. Albright, 381 F.3d 965, 969 n.4 (9th Cir. 2004) (en banc) (“The 25 critical date” for determining whether a state proceeding is “ongoing” is “the date the federal 26 action is filed.”). See also Nationwide Biweekly Admin. Inc. v. Owen, 873 F.3d 716, 728 (9th Cir. 27 2017) (state proceedings are “ongoing” if the proceedings commenced “before any proceedings 28 of substance on the merits have taken place in federal court.”). Petitioner lodged his state appeal 1 on February 27, 2020, which remains pending, and respondent has not yet been directed to file a 2 response to the petition. Second, the pending state court criminal proceedings clearly implicate 3 important state interests. Kelly v. Robinson, 479 U.S. 36, 49 (1986) (“This Court has recognized 4 that the States' interest in administering their criminal justice systems free from federal 5 interference is one of the most powerful of the considerations that should influence a court 6 considering equitable types of relief.). Third, the state proceedings afford petitioner an adequate 7 forum to advance his claims. Smith v. Plummer, 438 F. App’x 642, 643 (9th Cir. 2011). And 8 fourth, as noted supra, courts in the Ninth Circuit have recognized abstention is appropriate when 9 petitioner has a pending appeal due to his resentencing. Nowhere in the petition does petitioner 10 allege and nothing in the record supports a finding of any extraordinary circumstances that would 11 warrant this court’s intervention. Because the Younger abstention applies, the undersigned 12 recommends the petition be dismissed without prejudice to refiling once petitioner’s state court 13 proceedings have concluded. 28 U.S.C. § 2244(d)(1)(A). 14 IV. CERTIFICATE OF APPEALABILITY 15 State prisoners in a habeas corpus action under § 2254 do not have an automatic right to 16 appeal a final order. See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335-36 17 (2003). To appeal, a prisoner must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(2); 18 see also R. Governing Section 2254 Cases 11 (requires a district court to issue or deny a 19 certificate of appealability when entering a final order adverse to a petitioner); Ninth Circuit Rule 20 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). Where, as here, the court 21 denies habeas relief on procedural grounds without reaching the merits of the underlying 22 constitutional claims, the court should issue a certificate of appealability only “if jurists of reason 23 would find it debatable whether the petition states a valid claim of the denial of a constitutional 24 right and that jurists of reason would find it debatable whether the district court was correct in its 25 procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar 26 is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist 27 could not conclude either that the district court erred in dismissing the petition or that the 28 petitioner should be allowed to proceed further.” Id. Here, reasonable jurists would not find the 1 | undersigned’s conclusion debatable or conclude that petitioner should proceed further. The 2 | undersigned therefore recommends that a certificate of appealability not issue. 3 Accordingly, it is now ORDERED: 4 The Clerk of Court is directed to assign a district judge to this case. 5 It is further RECOMMENDED: 6 1. The petition (Doc. No. 1) be DISMISSED without prejudice. 7 2. No certificate of appealability be issued. 8 NOTICE TO PARTIES 9 These findings and recommendations will be submitted to the United States district judge 10 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) 11 | days after being served with these findings and recommendations, a party may file written 12 || objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 13 | Findings and Recommendations.” Parties are advised that failure to file objections within the 14 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 15 | 838-39 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 16 7 IT IS SO ORDERED. Dated: April 23, 2021 Mile. Nh. fareh Base □□□ 19 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE
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