1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN WILLIAM UPSHAW, No. 1:22-cv-00949-HBK (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION WITHOUT 13 v. PREJUDICE1 14 WARDEN OF C.S.P. LOS ANGELES, FOURTEEN-DAY OBJECTION PERIOD 15 Respondent. (Doc. No. 1) 16 ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 17 18
19 Petitioner John William Upshaw (“Petitioner”), a state prisoner initiated this action by 20 filling a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 on July 29, 2022. (Doc. 21 No. 1, “Petition”). This matter is now before the Court for preliminary review. See Rules 22 Governing § 2254 Cases, Rule 4; 28 U.S.C. § 2243. As more fully explained below, because 23 Petitioner’s state habeas petition remains before the California Supreme Court, the undersigned 24 recommends the court abstain from exercising jurisdiction and dismiss the petition without 25 prejudice to refiling after petitioner’s state proceedings have concluded. 26 //// 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2022). 1 I. BACKGROUND 2 Petitioner is challenging his September 2018 Tulare County Superior Court plea-based 3 conviction for residential robbery, robbery, attempted carjacking, and two counts of vehicle theft. 4 (Doc. No. 1 at 1). The Petition raises several grounds for relief: (1) ineffective assistance of 5 counsel for failure to inform him of his “right to make an insanity plea”; (2) his guilty plea was 6 made “under duress”; (3) his mental capacity should have been evaluated; and (4) he was required 7 to pay more restitution than agreed to as part of his guilty plea. (Id. at 5-10). Petitioner attaches a 8 copy of the Superior Court’s March 30, 2022 order denying relief on his state habeas corpus 9 petition. (Id. at 16-18). 10 II. APPLICABLE LAW AND ANALYSIS 11 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary 12 review of each petition for writ of habeas corpus. The Court must dismiss a petition “[i]f it 13 plainly appears from the petition . . . that the petitioner is not entitled to relief.” Rule 4 of the 14 Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 15 The Advisory Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ 16 of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 17 dismiss, or after an answer to the petition has been filed. Courts have “an active role in 18 summarily disposing of facially defective habeas petitions” under Rule 4. Ross v. Williams, 896 19 F.3d 958, 968 (9th Cir. 2018) (citation omitted). However, a petition for habeas corpus should 20 not be dismissed without leave to amend unless it appears that no tenable claim for relief can be 21 pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 22 For purposes of § 2254 habeas review, a conviction is final when “a judgment of 23 conviction has been rendered, the availability of appeal exhausted, and the time for a petition for 24 certiorari elapsed or a petition for certiorari finally denied.” Griffith v. Kentucky, 478 U.S. 314, 25 321 n. 6 (1987). The seminal case of Younger v. Harris, 401 U.S. 37, 44 (1971) applies when a 26 petitioner’s conviction is not yet final. In Younger, the Supreme Court held that a federal court 27 generally cannot interfere with pending state criminal proceedings. This holding, commonly 28 referred to as the Younger abstention doctrine, is based on the principle of federal-state comity 1 and is appropriate when: “(1) there is an ongoing state judicial proceeding; (2) the proceeding 2 implicates important state interests; (3) there is an adequate opportunity in the state proceedings 3 to raise constitutional challenges; and (4) the requested relief seeks to enjoin or has the practical 4 effect of enjoining the ongoing state judicial proceeding.” Page v. King, 932 F.3d 898, 901–902 5 (9th Cir. 2019) (quoting Arevalo v. Hennessy, 882 F.3d 763, 765 (9th Cir. 2018) (alterations and 6 internal quotation marks omitted)). In the habeas context, “[w]here . . . no final judgment has 7 been entered in state court, the state court proceeding is plainly ongoing for purposes of 8 Younger.” Id. at 902. Absent rare circumstances, a district court must dismiss such actions. See 9 Cook v. Harding, 190 F. Supp. 3d 921, 935, 938 (C.D. Cal. 2016), aff’d, 879 F.3d 1035 (9th Cir. 10 2018); Perez v. Ledesma, 401 U.S. 82, 85 (1971) (“Only in cases of proven harassment or 11 prosecutions undertaken by state officials in bad faith without hope of obtaining a valid 12 conviction and perhaps in other extraordinary circumstances where irreparable injury can be 13 shown” is federal intervention in an on-going state criminal proceeding appropriate.). 14 The Petition is unclear has to whether Petitioner has a habeas corpus petition pending in the 15 California Supreme Court or appears to be under the mistaken belief that he is filing the instant 16 Petition with the California Supreme Court. (Id. at 2, in response to whether he sought review of 17 the Superior Court’s denial of relief, Petitioner checks “No” but then identifies the California 18 Supreme Court and states his case is “pending”; see also id. at 4-5, stating “I appealed to the 19 sentencing court first, [and] now I’m appealing to the state supreme court”; see also id. at 9-10, 20 acknowledging he filed only with the sentencing court and with “this court”). However, the Court 21 takes judicial notice of the California Courts Appellate Courts Case Information online database 22 pursuant to Rule 201 of the Federal Rules of Evidence, which indicates a petition for writ of habeas 23 corpus was filed in the California Supreme Court on September 19, 2022, and is still pending as of 24 the date of these findings and recommendations.2 Nowhere in the petition does petitioner allege 25 and nothing in the record supports a finding of any extraordinary circumstances that would warrant 26 this court’s intervention. Further, absent certain circumstances, not present here, exhaustion of 27 2 https://appellatecases.courtinfo.ca.gov/search.cfm?dist=0 (search “Search by Party” for “John William 28 Upshaw”). 1 state court remedies is a prerequisite to filing a federal habeas action. 28 U.S.C. § 2254 (b)(1)(A). 2 Consequently, the undersigned recommends the district court dismiss the Petition without 3 prejudice to refiling once Petitioner’s state court proceedings have fully concluded. 4 III.
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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 JOHN WILLIAM UPSHAW, No. 1:22-cv-00949-HBK (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION WITHOUT 13 v. PREJUDICE1 14 WARDEN OF C.S.P. LOS ANGELES, FOURTEEN-DAY OBJECTION PERIOD 15 Respondent. (Doc. No. 1) 16 ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 17 18
19 Petitioner John William Upshaw (“Petitioner”), a state prisoner initiated this action by 20 filling a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 on July 29, 2022. (Doc. 21 No. 1, “Petition”). This matter is now before the Court for preliminary review. See Rules 22 Governing § 2254 Cases, Rule 4; 28 U.S.C. § 2243. As more fully explained below, because 23 Petitioner’s state habeas petition remains before the California Supreme Court, the undersigned 24 recommends the court abstain from exercising jurisdiction and dismiss the petition without 25 prejudice to refiling after petitioner’s state proceedings have concluded. 26 //// 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2022). 1 I. BACKGROUND 2 Petitioner is challenging his September 2018 Tulare County Superior Court plea-based 3 conviction for residential robbery, robbery, attempted carjacking, and two counts of vehicle theft. 4 (Doc. No. 1 at 1). The Petition raises several grounds for relief: (1) ineffective assistance of 5 counsel for failure to inform him of his “right to make an insanity plea”; (2) his guilty plea was 6 made “under duress”; (3) his mental capacity should have been evaluated; and (4) he was required 7 to pay more restitution than agreed to as part of his guilty plea. (Id. at 5-10). Petitioner attaches a 8 copy of the Superior Court’s March 30, 2022 order denying relief on his state habeas corpus 9 petition. (Id. at 16-18). 10 II. APPLICABLE LAW AND ANALYSIS 11 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary 12 review of each petition for writ of habeas corpus. The Court must dismiss a petition “[i]f it 13 plainly appears from the petition . . . that the petitioner is not entitled to relief.” Rule 4 of the 14 Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 15 The Advisory Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ 16 of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 17 dismiss, or after an answer to the petition has been filed. Courts have “an active role in 18 summarily disposing of facially defective habeas petitions” under Rule 4. Ross v. Williams, 896 19 F.3d 958, 968 (9th Cir. 2018) (citation omitted). However, a petition for habeas corpus should 20 not be dismissed without leave to amend unless it appears that no tenable claim for relief can be 21 pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 22 For purposes of § 2254 habeas review, a conviction is final when “a judgment of 23 conviction has been rendered, the availability of appeal exhausted, and the time for a petition for 24 certiorari elapsed or a petition for certiorari finally denied.” Griffith v. Kentucky, 478 U.S. 314, 25 321 n. 6 (1987). The seminal case of Younger v. Harris, 401 U.S. 37, 44 (1971) applies when a 26 petitioner’s conviction is not yet final. In Younger, the Supreme Court held that a federal court 27 generally cannot interfere with pending state criminal proceedings. This holding, commonly 28 referred to as the Younger abstention doctrine, is based on the principle of federal-state comity 1 and is appropriate when: “(1) there is an ongoing state judicial proceeding; (2) the proceeding 2 implicates important state interests; (3) there is an adequate opportunity in the state proceedings 3 to raise constitutional challenges; and (4) the requested relief seeks to enjoin or has the practical 4 effect of enjoining the ongoing state judicial proceeding.” Page v. King, 932 F.3d 898, 901–902 5 (9th Cir. 2019) (quoting Arevalo v. Hennessy, 882 F.3d 763, 765 (9th Cir. 2018) (alterations and 6 internal quotation marks omitted)). In the habeas context, “[w]here . . . no final judgment has 7 been entered in state court, the state court proceeding is plainly ongoing for purposes of 8 Younger.” Id. at 902. Absent rare circumstances, a district court must dismiss such actions. See 9 Cook v. Harding, 190 F. Supp. 3d 921, 935, 938 (C.D. Cal. 2016), aff’d, 879 F.3d 1035 (9th Cir. 10 2018); Perez v. Ledesma, 401 U.S. 82, 85 (1971) (“Only in cases of proven harassment or 11 prosecutions undertaken by state officials in bad faith without hope of obtaining a valid 12 conviction and perhaps in other extraordinary circumstances where irreparable injury can be 13 shown” is federal intervention in an on-going state criminal proceeding appropriate.). 14 The Petition is unclear has to whether Petitioner has a habeas corpus petition pending in the 15 California Supreme Court or appears to be under the mistaken belief that he is filing the instant 16 Petition with the California Supreme Court. (Id. at 2, in response to whether he sought review of 17 the Superior Court’s denial of relief, Petitioner checks “No” but then identifies the California 18 Supreme Court and states his case is “pending”; see also id. at 4-5, stating “I appealed to the 19 sentencing court first, [and] now I’m appealing to the state supreme court”; see also id. at 9-10, 20 acknowledging he filed only with the sentencing court and with “this court”). However, the Court 21 takes judicial notice of the California Courts Appellate Courts Case Information online database 22 pursuant to Rule 201 of the Federal Rules of Evidence, which indicates a petition for writ of habeas 23 corpus was filed in the California Supreme Court on September 19, 2022, and is still pending as of 24 the date of these findings and recommendations.2 Nowhere in the petition does petitioner allege 25 and nothing in the record supports a finding of any extraordinary circumstances that would warrant 26 this court’s intervention. Further, absent certain circumstances, not present here, exhaustion of 27 2 https://appellatecases.courtinfo.ca.gov/search.cfm?dist=0 (search “Search by Party” for “John William 28 Upshaw”). 1 state court remedies is a prerequisite to filing a federal habeas action. 28 U.S.C. § 2254 (b)(1)(A). 2 Consequently, the undersigned recommends the district court dismiss the Petition without 3 prejudice to refiling once Petitioner’s state court proceedings have fully concluded. 4 III. CERTIFICATE OF APPEALABILITY 5 State prisoners in a habeas corpus action under § 2254 do not have an automatic right to 6 appeal a final order. See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335-36 7 (2003). To appeal, a prisoner must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(2); 8 see also R. Governing Section 2254 Cases 11 (requires a district court to issue or deny a 9 certificate of appealability when entering a final order adverse to a petitioner); Ninth Circuit Rule 10 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). Where, as here, the court 11 denies habeas relief on procedural grounds without reaching the merits of the underlying 12 constitutional claims, the court should issue a certificate of appealability only “if jurists of reason 13 would find it debatable whether the petition states a valid claim of the denial of a constitutional 14 right and that jurists of reason would find it debatable whether the district court was correct in its 15 procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar 16 is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist 17 could not conclude either that the district court erred in dismissing the petition or that the 18 petitioner should be allowed to proceed further.” Id. Here, reasonable jurists would not find the 19 undersigned’s conclusion debatable or conclude that petitioner should proceed further. The 20 undersigned therefore recommends that a certificate of appealability not issue 21 Accordingly, it is ORDERED: 22 The Clerk of Court is directed shall assign this case to a district judge for the purposes of 23 reviewing these findings and recommendations. 24 Further, it is RECOMMENDED: 25 1. The Petition (Doc. No. 1) be DISMISSED WITHOUT PREJUDICE. 26 2. Petitioner be denied a certificate of appealability. 27 NOTICE TO PARTIES 28 These findings and recommendations will be submitted to the United States district judge 1 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 2 | days after being served with these findings and recommendations, a party may file written 3 | objections with the court. The document should be captioned “Objections to Magistrate Judge’s 4 | Findings and Recommendations.” Parties are advised that failure to file objections within the 5 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 6 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 7 8 Dated: _ October 25, 2022 Coo. Th. Bareh Hack 9 HELENA M. BARCH-KUCHTA 10 UNITED STATES MAGISTRATE JUDGE
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