1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 JESSE LOBATO, ) No. CV 19-10312-VBF (PLA) ) 13 Petitioner, ) ) ORDER TO SHOW CAUSE RE: DISMISSAL 14 v. ) OF HABEAS PETITION ) 15 SAN BERNARDINO COUNTY, et al., ) ) 16 Respondents. ) ) 17 18 Jesse Lobato (“petitioner”) initiated this action on December 5, 2019, by filing a Petition for 19 Writ of Habeas Corpus (“Petition”). The cover page of the Petition cites to both 28 U.S.C. § 2254, 20 the habeas statute applicable to state prisoners seeking to challenge a state court judgment, and 21 42 U.S.C. § 1983, which applies to civil rights actions. (ECF No. 1 at 1). Petitioner states that he 22 has been charged with carjacking (Cal. Penal Code § 215(a)), and being a felon in possession of 23 a firearm (Cal. Penal Code § 29800(a)(1)), and that his criminal proceeding in the San Bernardino 24 County Superior Court is “still pending.” (ECF No. 1 at 21). 25 26 1 Petitioner filed two documents on December 5, 2019. The first document, the Petition, 27 was docketed as ECF No. 1. The second document, entitled “Actual Malice: A Liability in Connection with a Cause of Action . . .,” was docketed as ECF No. 2. For purposes of this Order, 28 1 A search of the San Bernardino County Inmate Locator website shows that, in Case No. 2 FWV18002049 in the San Bernardino County Superior Court, petitioner has been charged with 3 the crimes referenced in the Petition -- carjacking and being a felon in possession of a firearm -- 4 as well as the crime of unlawful possession of ammunition (Cal. Penal Code § 30305(a)(1)). He 5 is currently incarcerated at the Central Detention Center in San Bernardino, and his next court 6 date is scheduled for February 4, 2020, in the superior court. (See San Bernardino County Inmate 7 Locator website at http://web.sbcounty.gov/sheriff/bookingsearch). 8 In the instant Petition, petitioner asserts the following claims: his attorney has provided 9 ineffective assistance in violation of the Sixth Amendment (ECF No. 1 at 3); respondents, acting 10 under color of state law, have framed petitioner for crimes he did not commit by ignoring 11 exculpatory evidence and tampering with evidence (id. at 4); the video surveillance evidence 12 shows that he does not look like the suspect (ECF No. 2 at 1-2); his confession was coerced as 13 a result of an “excessive malicious interrogation” (id. at 10); a police officer has changed his sworn 14 testimony (id. at 11); and the identification of petitioner as the suspect was unreliable because 15 officers used a suggestive six-pack photographic lineup (id. at 11). As relief, petitioner apparently 16 seeks an order from the Court barring the superior court from violating petitioner’s due process 17 and fair trial rights, and ordering the superior court to “exercise proper criminal procedure.” (Id. 18 at 15). As set forth below, the Petition has several defects that subject it to dismissal. 19 20 A. EXHAUSTION OF AVAILABLE STATE COURT REMEDIES 21 As a threshold matter, petitioner is considered a pretrial detainee because he has not yet 22 been convicted and sentenced in Case No. FWV18002049. Accordingly, any habeas claims 23 concerning his criminal case would fall under 28 U.S.C. § 2241, and not § 2254. Section 2241 24 empowers a federal court to grant habeas relief to a pretrial detainee held “in custody in violation 25 of the Constitution.” 28 U.S.C. § 2241(c)(3); see also McNeely v. Blanas, 336 F.3d 822, 824 n.1 26 (9th Cir. 2003); White v. Lambert, 370 F.3d 1002, 1006 (9th Cir. 2004) (“[T]he general grant of 27 habeas authority in § 2241 is available for challenges by a state prisoner who is not in custody 28 pursuant to a state court judgment -- for example, a defendant in pre-trial detention[.]”), overruled 1 on other grounds by Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc), overruled on 2 other grounds by Swarthout v. Cooke, 562 U.S. 216, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011). 3 Although exhaustion under § 2241 is not a jurisdictional prerequisite, federal courts require, 4 “as a prudential matter, . . . that habeas petitioners exhaust all available judicial and administrative 5 remedies before seeking relief under § 2241.” Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 6 2012). To complete the exhaustion procedure, a petitioner’s contentions must be fairly presented 7 to the state supreme court even if that court’s review is discretionary. O’Sullivan v. Boerckel, 526 8 U.S. 838, 845-47, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); James v. Giles, 221 F.3d 1074, 1077, 9 n.3 (9th Cir. 2000). Moreover, a claim has not been fairly presented unless the petitioner has 10 described in the state court proceedings both the operative facts and the federal legal theory on 11 which the claim is based. See Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 12 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275-78, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); 13 Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996). 14 Petitioner has the burden of demonstrating that exhaustion was completed. See, e.g., 15 Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982). Here, there is no indication that he has 16 presented any of his claims to the California Supreme Court. Accordingly, the Petition is subject 17 to dismissal without prejudice as unexhausted. 18 19 B. ABSTENTION 20 The Petition challenges various aspects of petitioner’s pending state proceeding. Indeed, 21 as relief, petitioner even asks the Court to order the state superior court to follow proper criminal 22 procedure and ensure that petitioner’s constitutional rights are not being infringed with respect to 23 his prosecution. Because petitioner’s state criminal case is ongoing, the Petition is subject to 24 dismissal pursuant to the abstention doctrine announced in Younger v. Harris, 401 U.S. 37, 43-54, 25 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). 26 The Younger case established a “strong federal policy against federal-court interference 27 with pending state judicial proceedings absent extraordinary circumstances.” King v. County of 28 Los Angeles, 885 F.3d 548, 559 (9th Cir. 2018) (quoting Middlesex County Ethics Comm. v. 1 Garden State Bar Ass’n, 457 U.S. 423, 431, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982)). Younger 2 and its progeny are based on the interests of comity and federalism that counsel federal courts 3 to maintain respect for state functions and not unduly interfere with the state’s good faith efforts 4 to enforce its own laws in its own courts. Middlesex County Ethics Comm., 457 U.S. at 431; 5 Dubinka v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 JESSE LOBATO, ) No. CV 19-10312-VBF (PLA) ) 13 Petitioner, ) ) ORDER TO SHOW CAUSE RE: DISMISSAL 14 v. ) OF HABEAS PETITION ) 15 SAN BERNARDINO COUNTY, et al., ) ) 16 Respondents. ) ) 17 18 Jesse Lobato (“petitioner”) initiated this action on December 5, 2019, by filing a Petition for 19 Writ of Habeas Corpus (“Petition”). The cover page of the Petition cites to both 28 U.S.C. § 2254, 20 the habeas statute applicable to state prisoners seeking to challenge a state court judgment, and 21 42 U.S.C. § 1983, which applies to civil rights actions. (ECF No. 1 at 1). Petitioner states that he 22 has been charged with carjacking (Cal. Penal Code § 215(a)), and being a felon in possession of 23 a firearm (Cal. Penal Code § 29800(a)(1)), and that his criminal proceeding in the San Bernardino 24 County Superior Court is “still pending.” (ECF No. 1 at 21). 25 26 1 Petitioner filed two documents on December 5, 2019. The first document, the Petition, 27 was docketed as ECF No. 1. The second document, entitled “Actual Malice: A Liability in Connection with a Cause of Action . . .,” was docketed as ECF No. 2. For purposes of this Order, 28 1 A search of the San Bernardino County Inmate Locator website shows that, in Case No. 2 FWV18002049 in the San Bernardino County Superior Court, petitioner has been charged with 3 the crimes referenced in the Petition -- carjacking and being a felon in possession of a firearm -- 4 as well as the crime of unlawful possession of ammunition (Cal. Penal Code § 30305(a)(1)). He 5 is currently incarcerated at the Central Detention Center in San Bernardino, and his next court 6 date is scheduled for February 4, 2020, in the superior court. (See San Bernardino County Inmate 7 Locator website at http://web.sbcounty.gov/sheriff/bookingsearch). 8 In the instant Petition, petitioner asserts the following claims: his attorney has provided 9 ineffective assistance in violation of the Sixth Amendment (ECF No. 1 at 3); respondents, acting 10 under color of state law, have framed petitioner for crimes he did not commit by ignoring 11 exculpatory evidence and tampering with evidence (id. at 4); the video surveillance evidence 12 shows that he does not look like the suspect (ECF No. 2 at 1-2); his confession was coerced as 13 a result of an “excessive malicious interrogation” (id. at 10); a police officer has changed his sworn 14 testimony (id. at 11); and the identification of petitioner as the suspect was unreliable because 15 officers used a suggestive six-pack photographic lineup (id. at 11). As relief, petitioner apparently 16 seeks an order from the Court barring the superior court from violating petitioner’s due process 17 and fair trial rights, and ordering the superior court to “exercise proper criminal procedure.” (Id. 18 at 15). As set forth below, the Petition has several defects that subject it to dismissal. 19 20 A. EXHAUSTION OF AVAILABLE STATE COURT REMEDIES 21 As a threshold matter, petitioner is considered a pretrial detainee because he has not yet 22 been convicted and sentenced in Case No. FWV18002049. Accordingly, any habeas claims 23 concerning his criminal case would fall under 28 U.S.C. § 2241, and not § 2254. Section 2241 24 empowers a federal court to grant habeas relief to a pretrial detainee held “in custody in violation 25 of the Constitution.” 28 U.S.C. § 2241(c)(3); see also McNeely v. Blanas, 336 F.3d 822, 824 n.1 26 (9th Cir. 2003); White v. Lambert, 370 F.3d 1002, 1006 (9th Cir. 2004) (“[T]he general grant of 27 habeas authority in § 2241 is available for challenges by a state prisoner who is not in custody 28 pursuant to a state court judgment -- for example, a defendant in pre-trial detention[.]”), overruled 1 on other grounds by Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc), overruled on 2 other grounds by Swarthout v. Cooke, 562 U.S. 216, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011). 3 Although exhaustion under § 2241 is not a jurisdictional prerequisite, federal courts require, 4 “as a prudential matter, . . . that habeas petitioners exhaust all available judicial and administrative 5 remedies before seeking relief under § 2241.” Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 6 2012). To complete the exhaustion procedure, a petitioner’s contentions must be fairly presented 7 to the state supreme court even if that court’s review is discretionary. O’Sullivan v. Boerckel, 526 8 U.S. 838, 845-47, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); James v. Giles, 221 F.3d 1074, 1077, 9 n.3 (9th Cir. 2000). Moreover, a claim has not been fairly presented unless the petitioner has 10 described in the state court proceedings both the operative facts and the federal legal theory on 11 which the claim is based. See Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 12 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275-78, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); 13 Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996). 14 Petitioner has the burden of demonstrating that exhaustion was completed. See, e.g., 15 Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982). Here, there is no indication that he has 16 presented any of his claims to the California Supreme Court. Accordingly, the Petition is subject 17 to dismissal without prejudice as unexhausted. 18 19 B. ABSTENTION 20 The Petition challenges various aspects of petitioner’s pending state proceeding. Indeed, 21 as relief, petitioner even asks the Court to order the state superior court to follow proper criminal 22 procedure and ensure that petitioner’s constitutional rights are not being infringed with respect to 23 his prosecution. Because petitioner’s state criminal case is ongoing, the Petition is subject to 24 dismissal pursuant to the abstention doctrine announced in Younger v. Harris, 401 U.S. 37, 43-54, 25 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). 26 The Younger case established a “strong federal policy against federal-court interference 27 with pending state judicial proceedings absent extraordinary circumstances.” King v. County of 28 Los Angeles, 885 F.3d 548, 559 (9th Cir. 2018) (quoting Middlesex County Ethics Comm. v. 1 Garden State Bar Ass’n, 457 U.S. 423, 431, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982)). Younger 2 and its progeny are based on the interests of comity and federalism that counsel federal courts 3 to maintain respect for state functions and not unduly interfere with the state’s good faith efforts 4 to enforce its own laws in its own courts. Middlesex County Ethics Comm., 457 U.S. at 431; 5 Dubinka v. Judges of Superior Ct. of the State of Cal., County of L.A., 23 F.3d 218, 223 (9th Cir. 6 1994). The Younger rationale applies throughout appellate proceedings as well, requiring that 7 state appellate review of a conviction be exhausted before federal court intervention is permitted. 8 Huffman v. Pursue, Ltd., 420 U.S. 592, 607-11, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); Dubinka, 9 23 F.3d at 223 (stating that even if the trial is complete at the time of the abstention decision, state 10 court proceedings are still considered pending). 11 Younger abstention is appropriate when the following factors are satisfied: “(1) there is an 12 ongoing state judicial proceeding; (2) the proceeding implicate[s] important state interests; (3) 13 there is an adequate opportunity in the state proceedings to raise constitutional challenges; and 14 (4) the requested relief seek[s] to enjoin or has the practical effect of enjoining the ongoing state 15 judicial proceeding.” Arevalo v. Hennessy, 882 F.3d 763, 765 (9th Cir. 2018) (citation and internal 16 quotations omitted). But “even if Younger abstention is appropriate, federal courts do not invoke 17 it if there is a showing of bad faith, harassment, or some other extraordinary circumstance that 18 would make abstention inappropriate.” Page v. King, 932 F.3d 898, 902 (9th Cir. 2019) (citations 19 and internal quotations omitted). 20 Here, the criteria for abstention are present. First, petitioner’s state criminal proceedings 21 are ongoing, as petitioner is in custody apparently awaiting trial on the criminal charges for which 22 he is being detained. It is generally not appropriate for a federal court to intercede at such a time. 23 See Drury v. Cox, 457 F.2d 764, 764-65 (9th Cir. 1972) (“[O]nly in the most unusual circumstances 24 is a defendant entitled to have federal interposition by way of injunction or habeas corpus until 25 after the jury comes in, judgment has been appealed from and the case concluded in the state 26 courts.”). Second, the pending prosecution implicates important state interests, in particular 27 California’s interest in the order and integrity of its criminal proceedings. See Kelly v. Robinson, 28 479 U.S. 36, 49, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986) (“[T]he States’ interest in administering 1 their criminal justice systems free from federal interference is one of the most powerful of the 2 considerations that should influence a court considering equitable types of relief.”). Third, 3 petitioner has an adequate opportunity to raise his habeas claims in his state proceedings, 4 including his trial and, if applicable, through state appellate review. See Penzoil Co. v. Texaco, 5 Inc., 481 U.S. 1, 15, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (a federal court should assume that state 6 procedures will afford an adequate opportunity for consideration of constitutional claims “in the 7 absence of unambiguous authority to the contrary”). The fourth Younger factor is also satisfied, 8 as granting habeas relief would require the Court to significantly interfere with, or in effect enjoin, 9 the pending state prosecution against petitioner. 10 Once the Younger criteria are met, abstention is required unless there is a showing of bad 11 faith or harassment, or there are extraordinary circumstances where irreparable injury can be 12 shown. See Page, 932 F.3d at 902. Here, petitioner’s brief and conclusory allegations of 13 wrongdoing do not establish the sort of “proven harassment or prosecution[ ] undertaken by state 14 officials in bad faith without hope of obtaining a valid conviction” that would warrant federal court 15 intervention. See Perez v. Ledesma, 401 U.S. 82, 85, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971). 16 Because no allegations in the Petition suggest that petitioner’s case would fall within any exception 17 to Younger, the Court must abstain from considering petitioner’s claims. 18 19 C. CIVIL RIGHTS CLAIMS 20 As mentioned supra, petitioner in the Petition cites 42 U.S.C. § 1983 and alleges that 21 respondents, acting “under the color of . . . state law,” have framed him for crimes he did not 22 commit and tampered with evidence. (ECF No. 1 at 1, 4). This allegation tracks the language of 23 Section 1983, which provides in pertinent part that any person who, “under color of any [state] 24 statute, . . . subjects . . . any citizen of the United States . . . to the deprivation of any rights, 25 privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured 26 in an action at law[.]” 42 U.S.C. § 1983. 27 28 1 To the extent petitioner intends to pursue relief under Section 1983, he may not file a single 2 action containing both habeas and civil rights claims. Although the Court has discretion to 3 construe a habeas petition as a civil rights complaint, the Court declines to do so here for several 4 reasons. Petitioner, through his purported civil rights claims, is asking the Court to interfere with his 5 ongoing state court prosecution in the very manner that the Younger abstention doctrine seeks to 6 prevent. Next, petitioner’s allegations are too vague, conclusory, and unsupported to satisfy Rule 7 8 of the Federal Rules of Civil Procedure, which requires “a short and plain statement of the claim 8 showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Lastly, the Court notes that the 9 filing fee for a habeas petition is $5, while the filing fee for a civil rights case is $350 plus an 10 administrative fee of $50. Even if a prisoner is granted in forma pauperis status with respect to filing 11 a civil rights action, the prisoner is still liable for the full amount of the $350 filing fee, by way of 12 deductions from the prisoner’s institutional account. See 28 U.S.C. § 1915(b)(1).2 Thus, converting 13 the instant Petition to a civil rights action would require petitioner to pay the larger filing fee, which 14 he may not wish to do. 15 16 D. CONCLUSION 17 Accordingly, petitioner is ordered to show cause why his Petition for Writ of Habeas 18 Corpus should not be dismissed. To satisfy this Order to Show Cause, no later than January 19 10, 2020, petitioner must submit to the Court a response making clear his arguments, if any, as 20 to why the Petition should not be dismissed (1) for lack of exhaustion, and/or (2) based on the 21 Younger abstention doctrine. All facts relied upon by petitioner must be proved by testimony 22 contained in a declaration signed under penalty of perjury pursuant to 28 U.S.C. § 1746, or in 23 properly authenticated documents. 24 Alternatively, if petitioner agrees that the Petition should be dismissed without prejudice for 25 either of the reasons discussed above, he may file a notice of voluntary dismissal pursuant to 26 27 2 Under this section, the term “prisoner” includes anyone person incarcerated in any facility 28 who is accused of a crime. 28 U.S.C. § 1915(h). 1 || Federal Rule of Civil Procedure 41(a)(1) (“Rule 41”). Rule 41 allows for the voluntary dismissal 2 || of an action by a petitioner without prejudice and without a court order before the opposing party 3|| serves either an answer or a motion for summary judgment. Fed. R. Civ. P. 41(a)(1); Hamilton 4|| v. Shearson-Lehman Am. Express, Inc., 813 F.2d 1532, 1534 (9th Cir. 1987). Respondent has not yet appeared in this action. 6 The Court clerk is directed to send petitioner a copy of a blank Central District form titled 7|| “Notice of Dismissal Pursuant to Federal Rules of Civil Procedure 41(a) or (c)” along with this Order to Show Cause. 9 In the event petitioner seeks to file a separate civil rights action (as he may not file one action that includes both habeas and civil rights claims), the Court clerk is also directed to send 11 || him a blank Central District civil rights form along with this Order, as well as a Request to Proceed Without Prepayment of Filing Fees. 13 Failure to respond to this Order by January 10, 2020, will result in the Petition being 14|| summarily dismissed for the reasons set forth above, and for failure to prosecute and 15|| follow court orders. 16 Mamet DATED: December 13, 2019 PAUL L. ABRAMS 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28