Jose Mitchell v. R. C. Johnson

C.D. California

Jose Mitchell v. R. C. Johnson

DecidedJune 18, 2020

Docket2:20-cv-05358

StatusUnknown

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Jose Mitchell v. R. C. Johnson, (C.D. Cal. 2020).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOSE MITCHELL, Case No. 2:20-cv-05358-MWF-KES 12 Petitioner, 13 v. ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE 14 R. C. JOHNSON, Warden, DISMISSED WITHOUT PREJUDICE 15 Respondent. 16 17 18 I. 19 BACKGROUND 20 On June 16, 2020, the Court received a petition for writ of habeas corpus by 21 a person in state custody under 28 U.S.C. § 2254 (“Petition” at Dkt. 1) filed by Jose 22 Mitchell (“Petitioner”). The Petition challenges Petitioner’s convictions for 23 conspiracy, second degree robbery, and attempted second degree robbery in Los 24 Angeles Superior Court case no. YA091753. (Pet. at 2 ¶ 2.) The Court construes 25 the Petition as raising the same claims that Petition raised on direct appeal, which 26 are as follows: 27 Ground One: Petitioner’s rights to due process and an impartial jury 28 1 were violated because the jury panel was tainted by comments and 2 discussions about his probation violation case. 3 Ground Two: Petitioner’s due process rights were violated because 4 there was insufficient evidence to support any of his convictions. 5 (Pet. at 3-10); see also People v. Mitchell, No. B281476, 2019 Cal. App. Unpub. 6 LEXIS 2385 at *30, 33 (Apr. 5, 2019) (“[Petitioner] contends his rights to a fair 7 trial and an impartial jury were violated by the trial court’s denial of his motion for 8 mistrial based on juror taint. ... [Petitioner] next contends that none of his 9 convictions is supported by substantial evidence.”). 10 On October 11, 2018, the California Court of Appeal affirmed Petitioner’s 11 convictions. People v. Mitchell, No. B281476, 2018 Cal. App. Unpub. LEXIS 12 6911 (Oct. 11, 2018). However, on January 16, 2019, the California Supreme 13 Court granted Petitioner’s request for review and transferred the case back to the 14 California Court of Appeal “with directions to vacate its decision and reconsider the 15 cause in light of Senate Bill No. 1393 (Stats. 2018, Ch. 1013).” People v. Mitchell, 16 No. S252559, 2019 Cal. LEXIS 296 at *1 (Jan. 16, 2019). Senate Bill No. 1393 17 granted California trial courts discretion to strike certain sentencing enhancements. 18 Mitchell, 2019 Cal. App. Unpub. LEXIS 2385 at *43. 19 On April 5, 2019, the California Court of Appeal issued a new decision again 20 affirming Petitioner’s convictions, but found that Petitioner was “entitled to a new 21 sentencing hearing at which the trial court can consider whether to strike the 22 recidivist enhancement pursuant to Penal Code section 667, subdivision (a)(1).” Id 23 at *44. Based on public records from the Los Angeles Superior Court, it appears 24 that the new sentencing hearing has not yet taken place. See Los Angeles Superior 25 Court Criminal Case Summary, Case No. YA091753-02.1 26 27 1 Available online at: http://www.lacourt.org/onlineservices/ON0001.aspx 28 1 II. 2 DISCUSSION 3 Under what is known as the Younger abstention doctrine, federal courts 4 generally will not intervene in pending state criminal proceedings absent 5 “extraordinary circumstances.” Younger v. Harris, 401 U.S. 37, 43-54 (1971). The 6 Court may consider sua sponte whether Younger abstention is appropriate. H.C. ex 7 rel. Gordon v. Koppel, 203 F.3d 610, 613 (9th Cir. 2000). 8 In Edelbacher v. Calderon, 160 F.3d 582 (9th Cir. 1998), the Ninth Circuit 9 considered “whether [a habeas] petitioner can challenge in federal court his state 10 conviction of guilt when he has exhausted all potential state remedies with regard to 11 his guilt, but not his sentence, the retrial of which is proceeding in the state court.” 12 Id. at 583-84. The court concluded: “When there is a pending state penalty retrial 13 and no unusual circumstances, we decline to depart from the general rule that a 14 petitioner must await the outcome of the state proceedings before commencing his 15 federal habeas corpus action.” Id. at 582-83. The court noted that the petitioner 16 had not shown that delays in resentencing were “extreme, unusual, or attributable to 17 the ineffectiveness of the state courts.” Id. at 586-87 (distinguishing Phillips v. 18 Vasquez, 56 F.3d 1030 (9th Cir. 1995)). 19 Significantly, because Petitioner’s judgment is not yet final, 28 U.S.C. 20 § 2244(d)’s one-year limitations period for filing a federal habeas petition under 28 21 U.S.C. § 2254 has not yet commenced running. See Burton v. Stewart, 549 U.S. 22 147, 156-57 (2007) (“Burton’s limitations period did not begin until both his 23 conviction and sentence ‘became final by the conclusion of direct review or the 24 expiration of the time for seeking such review’”). Moreover, a dismissal of the 25 current Petition without prejudice would not prevent Petitioner from filing a new 26 federal habeas petition under 28 U.S.C. § 2254 once his convictions and sentence 27 are final. See United States v. Buenrostro, 895 F.3d 1160, 1165 (9th Cir.), cert. 28 denied, 139 S. Ct. 438 (2018) (“A judicial resentencing may ... produce a new 1 | judgment” which “may be challenged without regard to the limitation on second-or- 2 | successive petitions ‘even if the [second-in-time] petition challenges only 3 | undisturbed portions of the original judgment.’”’) (citation omitted). 4 III. 5 CONCLUSION 6 IT IS HEREBY ORDERED that, on or before August 3, 2020, Petitioner 7 | shall respond to this Order to Show Cause in one of the following ways: 8 1. If Petitioner has been resentenced by the Los Angeles Superior Court, 9 he should file a Status Report stating when that resentencing happened. 10 2. If Petitioner has not been resentenced, he should either: 1] a. File a Notice of Voluntary Dismissal of the current federal 12 petition using the form attached to this order; or 13 b. File a Memorandum of Law explaining why he believes this 14 Court should consider his federal habeas petition before he is 15 resentenced. Any such Memorandum of Law should explain 16 what has happened in the Los Angeles Superior Court criminal 17 case after the California Court of Appeal’s remand, and when 18 Petitioner expects to be resentenced. 19 20 | DATED: June 18, 2020 Dl crams &. Scok ? 1 KAREN E. SCOTT United States Magistrate Judge 22 23 24 25 26 27 28

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CASE NUMBER JOSE MITCHELL, 2:20-cv-05358-MWF-KES Petitioner(s), v. NOTICE OF DISMISSAL JOHNSON, Warden, PURSUANT TO FEDERAL RULE F CIVIL PROCEDURE 41(a)(1 Respondent(s). OF CIV OCEDU (a)(1)

PLEASE TAKE NOTICE: (Check one) This action is dismissed by the Petitioner in its entirety. ONLY Ground(s)

is/are dismissed by Petitioner in its/their entirety. L] ONLY Respondent(s)

is/are dismissed.

The dismissal is made pursuant to Federal Rule of Civil Procedure 41(a)(1).

Date Signature of Petitioner

F.R.Civ.P. 41(a): This notice may be filed at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs.

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOSE MITCHELL, Case No. 2:20-cv-05358-MWF-KES 12 Petitioner, 13 v. ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE 14 R. C. JOHNSON, Warden, DISMISSED WITHOUT PREJUDICE 15 Respondent. 16 17 18 I. 19 BACKGROUND 20 On June 16, 2020, the Court received a petition for writ of habeas corpus by 21 a person in state custody under 28 U.S.C. § 2254 (“Petition” at Dkt. 1) filed by Jose 22 Mitchell (“Petitioner”). The Petition challenges Petitioner’s convictions for 23 conspiracy, second degree robbery, and attempted second degree robbery in Los 24 Angeles Superior Court case no. YA091753. (Pet. at 2 ¶ 2.) The Court construes 25 the Petition as raising the same claims that Petition raised on direct appeal, which 26 are as follows: 27 Ground One: Petitioner’s rights to due process and an impartial jury 28 1 were violated because the jury panel was tainted by comments and 2 discussions about his probation violation case. 3 Ground Two: Petitioner’s due process rights were violated because 4 there was insufficient evidence to support any of his convictions. 5 (Pet. at 3-10); see also People v. Mitchell, No. B281476, 2019 Cal. App. Unpub. 6 LEXIS 2385 at *30, 33 (Apr. 5, 2019) (“[Petitioner] contends his rights to a fair 7 trial and an impartial jury were violated by the trial court’s denial of his motion for 8 mistrial based on juror taint. ... [Petitioner] next contends that none of his 9 convictions is supported by substantial evidence.”). 10 On October 11, 2018, the California Court of Appeal affirmed Petitioner’s 11 convictions. People v. Mitchell, No. B281476, 2018 Cal. App. Unpub. LEXIS 12 6911 (Oct. 11, 2018). However, on January 16, 2019, the California Supreme 13 Court granted Petitioner’s request for review and transferred the case back to the 14 California Court of Appeal “with directions to vacate its decision and reconsider the 15 cause in light of Senate Bill No. 1393 (Stats. 2018, Ch. 1013).” People v. Mitchell, 16 No. S252559, 2019 Cal. LEXIS 296 at *1 (Jan. 16, 2019). Senate Bill No. 1393 17 granted California trial courts discretion to strike certain sentencing enhancements. 18 Mitchell, 2019 Cal. App. Unpub. LEXIS 2385 at *43. 19 On April 5, 2019, the California Court of Appeal issued a new decision again 20 affirming Petitioner’s convictions, but found that Petitioner was “entitled to a new 21 sentencing hearing at which the trial court can consider whether to strike the 22 recidivist enhancement pursuant to Penal Code section 667, subdivision (a)(1).” Id 23 at *44. Based on public records from the Los Angeles Superior Court, it appears 24 that the new sentencing hearing has not yet taken place. See Los Angeles Superior 25 Court Criminal Case Summary, Case No. YA091753-02.1 26 27 1 Available online at: http://www.lacourt.org/onlineservices/ON0001.aspx 28 1 II. 2 DISCUSSION 3 Under what is known as the Younger abstention doctrine, federal courts 4 generally will not intervene in pending state criminal proceedings absent 5 “extraordinary circumstances.” Younger v. Harris, 401 U.S. 37, 43-54 (1971). The 6 Court may consider sua sponte whether Younger abstention is appropriate. H.C. ex 7 rel. Gordon v. Koppel, 203 F.3d 610, 613 (9th Cir. 2000). 8 In Edelbacher v. Calderon, 160 F.3d 582 (9th Cir. 1998), the Ninth Circuit 9 considered “whether [a habeas] petitioner can challenge in federal court his state 10 conviction of guilt when he has exhausted all potential state remedies with regard to 11 his guilt, but not his sentence, the retrial of which is proceeding in the state court.” 12 Id. at 583-84. The court concluded: “When there is a pending state penalty retrial 13 and no unusual circumstances, we decline to depart from the general rule that a 14 petitioner must await the outcome of the state proceedings before commencing his 15 federal habeas corpus action.” Id. at 582-83. The court noted that the petitioner 16 had not shown that delays in resentencing were “extreme, unusual, or attributable to 17 the ineffectiveness of the state courts.” Id. at 586-87 (distinguishing Phillips v. 18 Vasquez, 56 F.3d 1030 (9th Cir. 1995)). 19 Significantly, because Petitioner’s judgment is not yet final, 28 U.S.C. 20 § 2244(d)’s one-year limitations period for filing a federal habeas petition under 28 21 U.S.C. § 2254 has not yet commenced running. See Burton v. Stewart, 549 U.S. 22 147, 156-57 (2007) (“Burton’s limitations period did not begin until both his 23 conviction and sentence ‘became final by the conclusion of direct review or the 24 expiration of the time for seeking such review’”). Moreover, a dismissal of the 25 current Petition without prejudice would not prevent Petitioner from filing a new 26 federal habeas petition under 28 U.S.C. § 2254 once his convictions and sentence 27 are final. See United States v. Buenrostro, 895 F.3d 1160, 1165 (9th Cir.), cert. 28 denied, 139 S. Ct. 438 (2018) (“A judicial resentencing may ... produce a new 1 | judgment” which “may be challenged without regard to the limitation on second-or- 2 | successive petitions ‘even if the [second-in-time] petition challenges only 3 | undisturbed portions of the original judgment.’”’) (citation omitted). 4 III. 5 CONCLUSION 6 IT IS HEREBY ORDERED that, on or before August 3, 2020, Petitioner 7 | shall respond to this Order to Show Cause in one of the following ways: 8 1. If Petitioner has been resentenced by the Los Angeles Superior Court, 9 he should file a Status Report stating when that resentencing happened. 10 2. If Petitioner has not been resentenced, he should either: 1] a. File a Notice of Voluntary Dismissal of the current federal 12 petition using the form attached to this order; or 13 b. File a Memorandum of Law explaining why he believes this 14 Court should consider his federal habeas petition before he is 15 resentenced. Any such Memorandum of Law should explain 16 what has happened in the Los Angeles Superior Court criminal 17 case after the California Court of Appeal’s remand, and when 18 Petitioner expects to be resentenced. 19 20 | DATED: June 18, 2020 Dl crams &. Scok ? 1 KAREN E. SCOTT United States Magistrate Judge 22 23 24 25 26 27 28