Levi Rockefeller v. Los Angeles County Sheriff s Dept.

• Court: District Court, C.D. California
• Decided: October 22, 2019
• Docket: 2:19-cv-06858
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 LEVI ROCKEFELLER, Case No. 2:19-cv-06858-DOC (GJS)

12 Petitioner

13 v. ORDER: SUMMARILY DISMISSING PETITION; AND 14 LOS ANGELES COUNTY DENYING A CERTIFICATE OF SHERIFFS DEPARMENT, APPEALABILITY 15 Respondent. 16 17 18 On August 7, 2019, Petitioner filed a habeas petition ostensibly pursuant to 28 19 U.S.C. § 2254 [Dkt. 1, “Petition”]. The Petition seeks Section 2254 habeas relief 20 with respect to a pending criminal case, namely, Los Angeles County Superior 21 Court Case No. BA471603 (the “Pending Criminal Case”). On the same date that 22 the Petition was filed, Petitioner filed a Request for Emergency Stay [Dkt. 3, 23 “Request], in which he asked the Court to stay the trial in the Pending Criminal 24 Case. 25 Rule 4 of the Rules Governing Section 2254 Cases in the United States District 26 Courts requires summary dismissal of Section 2254 petitions “[i]f it plainly appears 27 from the petition and any attached exhibits that the petitioner is not entitled to relief 28 in the district court.” Rule 4, 28 U.S.C. foll. § 2254. The Court has reviewed the 1 Petition and its attachments, the August 14, 2019 Order to Show Cause issued by 2 United States Magistrate Judge Gail J. Standish [Dkt. 6, “OSC”], and Petitioner’s 3 untimely response to the OSC [Dkt. 7, “Response”] carefully and, further, has taken 4 judicial notice, pursuant to Federal Rule of Evidence 201, of the dockets for the 5 California courts available electronically. Having done so, and for the following 6 reasons, the Court finds that summary dismissal of this action, without prejudice, is 7 required pursuant to the abstention doctrine. 8 9 BACKGROUND 10 The dockets for the Los Angeles County Superior Court show that the Pending 11 Criminal Case stems from a charged September 20, 2018 criminal violation, and 12 was initiated on September 24, 2018, against someone named “Nicholas Garcia.” 13 “Nicholas Garcia” was charged with domestic violence, violation of a protective or 14 stay away order, stalking, and criminal threats. Following the October 30, 2018 15 preliminary hearing, the Pending Criminal Case thereafter proceeded against “Levi 16 Princeton Rockafellor.” Petitioner has filed this action under the name “Levi 17 Rockefeller,” The Court assumes that Petitioner is the same person as “Levi 18 Princeton Rockafellor” and, presumably, “Nicholas Garcia.”1 19

20 1 The OSC noted these varying names and expressly directed Petitioner, in his Response, to provide clarification regarding the fact that, with respect to the various state criminal actions the 21 Petition alleges have been filed against him (as discussed herein), state court dockets repeatedly 22 indicate the name “Nicholas Garcia” as defendant in initial filings and then were amended to read “Levi Rockefeller” or some variant thereof as the defendant. Although Petitioner notes this 23 question, he dodges it (see, e.g., Response pp. 10-11), failing to respond to the simple question posed by the OSC – to wit, are “Nicholas Garcia” and “Levi Rockefeller” the same person for 24 purposes of the various Los Angeles Superior Court criminal cases the Petition alleges have been 25 filed against him? Moreover, even though this information is within his own personal knowledge, in his Response (at pp. 11, 23-24), Petitioner now asserts that he “may not be the accused (No. 26 GA105379)” and professes to be unable to know whether or not he is the defendant in that case, notwithstanding that, in the Petition, Request and Response, he specifically alleges that Case No. 27 GA105379 was a “second case” in which he was charged and vigorously complains about the case for a number of reasons, including asserting that it is a wrongful prosecution against him and that 28 his counsel has improperly referred him for mental competency proceedings. Petitioner cannot 1 The Pending Criminal Case was set for trial in January, in February, and then 2 again in May 2019, but trial has not yet occurred. The most recent docket entries for 3 the Pending Criminal Case are: one on July 23, 2019, which reflects a hearing into 4 Petitioner’s mental competence; and one on September 1, 2019, which simply reads 5 “Docket Line Entry.” 6 The dockets for the California Court of Appeal and the California Supreme Court 7 show that, in connection with the Pending Criminal Case, Petitioner has filed 8 numerous mandamus petitions, stay requests, and petitions for review in March, 9 June, and July 2019, all of which were denied. Petitioner filed a habeas petition in 10 the California Supreme Court on July 29, 2019 (Case No. S257128), which was 11 denied on October 16, 2019. He also filed two petitions for a writ of 12 mandate/prohibition in the state high court on October 7, 2019 (Case Nos. S258442 13 and S258464), which apparently are pending. 14 Thus, the record shows that Petitioner has not yet been convicted in connection 15 with the Pending Criminal Case, the predicate for the Petition . 16 On August 14, 2019, Magistrate Judge Standish issued the OSC in this case. As 17 discussed below, the OSC explained to Petitioner that abstention appears to be 18 required in this case, as well as dismissal of the action without prejudice. The OSC 19 directed Petitioner to file a response by no later than September 18, 2019, 20 addressing the abstention issue as well as clarifying various other matters identified 21 in the OSC. The September 18, 2019 deadline passed, and Petitioner neither 22 responded to the OSC on a timely basis nor sought additional time to do so. 23 However, belatedly on October 3, 2019, Petitioner filed the Response to the OSC, 24 which the Court has considered despite its untimeliness. 25 26 27 have it both ways. Either he is the criminal defendant in Case No. GA105379 or he is not, and if 28 he is not, he cannot complain herein or in any other action about any events in that case. 1 THE PETITION 2 As noted in the OSC, the claims Petitioner has alleged through the Petition are 3 difficult to determine clearly.2 The Petition directs the Court to see “Grounds One 4 through Ten in the attached handwritten petition” but there is no such document 5 attached to the Petition. The Response (at 12) confirms the OSC’s assumption that 6 this directive was a reference to Petitioner’s lengthy Request instead, which at pages 7 7-10, lists 12 items under “Grounds raised,”3 followed by close to 60 pages of 8 rambling narrative. The Response (at 14-15) purports to restates the 12 grounds 9 assertedly raised through the Petition, which when read with the Petition and 10 Request, appear to complain about the following briefly summarized matters: 11 Petitioner alleges that he is proceeding pro se in the Pending Criminal Case and 12 that various persons – the trial court judge, former counsel, the prosecutor – have 13 failed to provide him with materials he has requested, such as pretrial transcripts, 14 prior attorney case files, etc. and/or have failed to meet their purported Brady 15 obligations. Petitioner asserts that the prosecutor made a “not true” statement about 16 Petitioner’s prior counsel, which somehow relates to the filing of a “second case in 17

18 2 The OSC observed that the Petition makes a number of cryptic and confusing references to 19 a host of other pending criminal actions (discussed below), and thus, it is unclear whether only the Pending Criminal Case is challenged by this Petition or whether Petitioner also seeks relief with 20 respect to other of his pending state criminal proceedings. In his Response, Petitioner acknowledges this question posed by the OSC but fails to clarify his intent, stating only that he 21 “re-asserts his desire to have this court honor review of those numerous petitions for eaches [sic] 22 claims, issues, due process of law violations and other Constitutional rights Deprivation beyond Petitioner’s XIV and VI and VIII Amendment stated claims.” (Response at 12.) 23 3 As the OSC noted, for many of these grounds, Petitioner states “no court has ever ruled on 24 this ground raised,” which led the Magistrate Judge, as well as this Court, to question whether 25 Petitioner has exhausted all of his habeas claims. In his Response (at 13), Petitioner again fails to provide clarity, asserting that he has exhausted his claims but then indicating he has raised them 26 “in one form or another; by informal and formal request for the Brady evidence at all state court levels.” This vague statement does not inspire confidence that the claims alleged in the Petition 27 are, in fact, exhausted. While lack of exhaustion alone could be a basis for dismissing this action, depending on further developments, the Court nonetheless declines at this time to resolve the 28 exhaustion issue. 1 (No GA105379) charging Petitioner.” According to the Los Angeles County 2 Superior Court dockets, Case No. GA105379 has been brought against “Nicholas 3 Garcia.”4 In his Response (at 16), Petitioner explains that this “not true” contention 4 stems from an instance in which his counsel declared a conflict in September 2018, 5 in a different case (No. BA471603) and “then imposed itself in a second case” (No. 6 GA105379) without notice or authority, which he states means that counsel referred 7 Petitioner for a mental competency evaluation in No. GA105379. Petitioner also 8 complains that an unspecified “structural error” by the prosecutor somehow caused 9 Petitioner to be arrested and imprisoned for violating a restraining order following 10 his 2015 conviction in a separate case (No. BA428706).5 11 In addition, Petitioner complains that the prosecutor submitted altered bodycam 12 evidence in audio format only and submitted altered photographs in lieu of the 13 bodycam video. Petitioner further complains that he told the trial court and his 14 former counsel that unspecified interviews, the preliminary hearing, and unspecified 15 transcripts are inaccurate, “because a wrong language interpreter was used” in 16 connection with his wife, which he now (Response at 15) characterizes as 17 “rendering interpolations rather than interpretations.” Petitioner contends that the 18 trial judge committed Brady error and violated judicial canons by ruling adversely to 19

20 4 Case No. GA105379 is based on a claimed August 17, 2018 violation and was filed on March 14, 2019, charging “Nicholas Garcia” with two counts of domestic violence and one count 21 of violation of a protective or stay away order. A preliminary hearing occurred on April 2, 2019, 22 and a mental competency referral was ordered on April 23, 2019. The docket shows a number of subsequent entries for “Further Proceedings,” with the next such “Further Proceeding” scheduled 23 for November 6, 2019.

24 5 As in the Pending Criminal Case, Case No. BA428706 initially was filed against “Nicholas 25 Garcia” and thereafter proceeded against “Levi Princeton Rockefellor.” The case is based on a charged August 25, 2014 violation. In a jury trial, Petitioner was found guilty of stalking on 26 September 16, 2015, and received a year in jail and five years’ probation. In mid-2018, violation proceedings commenced, although the violation hearing apparently has not yet occurred. On July 27 23, 2019, a mental competency hearing occurred. In his Response (at pp. 14, 17), Petitioner contends that he should not have been arrested in the first instance for violated a restraining order, 28 because the alleged victim was “not a named party” in the underlying restraining order. 1 him. Petitioner asserts that court reporters keep creating transcripts that omit 2 information relating to his defense, although they include information favorable to 3 the prosecution. Petitioner alleges that the prosecutor violated Brady by failing to 4 disclose an October 30, 2018 interview to Petitioner prior to the preliminary hearing. 5 Finally, as the twelfth claim, the Petition alludes to the No. GA105379 case and 6 unspecified government misconduct, violations of the California Penal Code, Brady 7 violations, judicial misconduct, State Bar ethical violations, fraud upon the court, 8 etc. In the Response (at 15), Petitioner describes this claim as one challenging 9 various of the trial judge’s rulings, although the allegations in this respect are 10 unclear. 11 As noted in the OSC, the remaining close to 60 pages of the Request are difficult 12 to follow, and Petitioner’s Response does little to clarify, instead (for the most part) 13 directing the Court to review the Request or the Response itself or to obtain and 14 review the entirety of Petitioner’s trial court and state appellate and high court 15 filings. In connection with the Pending Criminal Case, Petitioner appears to contend 16 that the prosecutor has wrongfully denied the existence of, and failed to disclose, 17 third and fourth interviews of his wife as recorded via police officer bodycam. 18 Petitioner is unhappy (to put it mildly) with a number of rulings made by the trial 19 judge as well as by her treatment of his investigator. Petitioner repeatedly 20 characterizes the trial judge and the prosecutor as “vindictive” and retaliatory, 21 although it is unclear to what he refers given the rambling nature of the Request and 22 garbled nature of Ground 12 as set forth in the Response. In the Request, Petitioner 23 also alludes to “criminal conduct” by the prosecutor, which in the Response, he 24 explains means Brady error. In the Request, Petitioner labels Case No. GA105379 a 25 “vindictive prosecution” but in his Response (at 20), states that what he really meant 26 was: he experienced vindictive prosecution in the Pending Criminal Case when the 27 prosecutor added a domestic violence charge after Petitioner exercised “his legal 28 rights against the original charge”; and the prosecutor then filed Case No. 1 GA105379 against him after Petitioner “exercised his legal right.” Petitioner makes 2 a number of allegations regarding his former and/or standby counsel but it is close to 3 impossible to figure out what he is complaining about; in the Response (at 21), 4 Petitioner simply tells the Court to go look at the state record.6 5 As relief, both the Request and the Petition seek an immediate stay of 6 Petitioner’s trial in the Pending Criminal Case. In his Response (at pp. 22-23), 7 Petitioner say that a “stay is not requested at this time” and moves to withdraw his 8 stay request. The Petition also asks the Court to, inter alia, appoint counsel and ask 9 such counsel and the “real parties in interest” (who Petitioner list as the Los Angeles 10 County Superior Court, the State of California, the California Attorney General’s 11 Office, and the State Bar of California) to perform an expedited review of all of 12 Petitioner’s criminal cases, including a review of whether he is entitled to bail, and 13 to calculate his credits; order a bail hearing in one or more of Petitioner’s state 14 criminal cases; hold that Petitioner has been improperly denied materials needed to 15 proceed pro per and prepare his defense in the Pending Criminal Case; make various 16 determinations regarding the propriety of the trial judge’s actions and decide 17 whether she should have been disqualified; adopt an unidentified “rule” pursuant to 18 one of the Ninth Circuit’s numerous published or unpublished decisions in United 19 States v. Amlani; and hold an evidentiary hearing regarding whether the prosecutor 20 has committed state law crimes by altering evidence, violated Brady, and committed 21 fraud upon the trial court. In the Response (at 22), Petitioner states that he wishes to 22 23 6 The Court notes that the Petition appends a declaration purportedly made by someone 24 named “Ben Ramirez,” who complains about allegedly altered bodycam recordings in connection 25 with a case brought against him following his April 2018 arrest (No. GA103284-01). The Los Angeles County Superior Court dockets shows that, in May 2018, someone named “Ben Aris 26 Ramirez” was charged with domestic violence, burglary, robbery, vandalism, and violation of a protective or stay away order, and he was convicted of domestic violence on July 19, 2019, 27 following a nolo contendere plea, and he received two years in state prison. The OSC noted that this declaration appears to be irrelevant to the Petition, with which Petitioner now agrees 28 (Response at 21). 1 have “federal” counsel – specializing in government misconduct – appointed to 2 review these matters and disavows any desire to have the “real parties in interest” 3 perform such a review. He also disavows any intent to have this Court order bail 4 and, instead, says he wants the Court to determine whether he has been held legally 5 without bail for several years. (Response at 22.) Petitioner also asks the Court to 6 add to the “real parties in interest” the following: “Vatche Tashjian”; “Kevin 7 Avery”; and the California Commission on Judicial Performance. (Id.) 8 9 ABSTENTION IS REQUIRED 10 The OSC explains why 28 U.S.C. § 2241, rather than 28 U.S.C. § 2254, governs 11 this case, and the Court adopts that analysis herein. In short, because Petitioner has 12 not yet sustained a state court conviction in the Pending Criminal Case, Section 13 2241, rather than Section 2254, governs this case. Accordingly, the Court will 14 construe the Petition as having been brought under Section 2241, given that absent 15 such a construction, dismissal would be required for lack of jurisdiction. 16 Only a limited number of pre-trial challenges have been found cognizable under 17 Section 2241. Generally, pre-trial habeas challenges have been allowed only when a 18 state defendant contends he is being deprived of his right to a speedy trial or the 19 Double Jeopardy Clause will be violated if he is tried. See, e.g., Braden v. 30th 20 Judicial Circuit Court, 93 S. Ct. 1123, 1126-28 (1973) (speedy trial); McNeeley, 21 336 F.3d at 824 n.1 (speedy trial); Mannes v. Gillespie, 967 F.2d 1310, 1312 (9th 22 Cir. 1992) (double jeopardy). However, even when a habeas challenge to a pre-trial 23 situation states a possible claim of constitutional error, this does not mean that the 24 claim should be considered by a federal court while the state criminal case is 25 pending. 26 Under Younger v. Harris, 401 U.S. 37 (1971), a federal court generally must 27 abstain from hearing a case that would enjoin or otherwise interfere with an ongoing 28 state proceeding. Younger abstention is required with respect to state judicial 1 proceedings when three circumstances exist: (1) the state proceedings are ongoing; 2 (2) the state proceedings implicate important state interests; (3) the state proceedings 3 afford the litigant an adequate opportunity to raise his federal claims; and (4) the 4 federal action would enjoin the state court proceeding or have the practical effect of 5 doing so, namely, interfere with the state proceeding in a way of which Younger 6 disapproves. See, e.g., San Jose Silicon Valley Chamber of Commerce Political 7 Action Comm. v. City of San Jose, 546 F.3d 1087, 1092 (9th Cir. 2008). “Younger 8 exemplifies one class of cases in which federal-court abstention is required: When 9 there is a parallel, pending state criminal proceeding, federal courts must refrain 10 from enjoining the state prosecution.” Spring Communications, Inc. v. Jacobs, 571 11 U.S. 68, 72 (2013). In these circumstances, abstention is required unless there is a 12 “showing of bad faith, harassment, or some other extraordinary circumstance that 13 would make abstention inappropriate.” Middlesex County Ethics Comm. v. Garden 14 State Bar Ass’n, 457 U.S. 423, 435 (1982). 15 The Younger abstention rule applies not only to requests to enjoin state 16 proceedings but to the consideration of claims that, if granted, effectively would 17 result in an interference with pending state proceedings. For example, the Supreme 18 Court has made clear that “federal habeas corpus does not lie, absent ‘special 19 circumstances,’ to adjudicate the merits of an affirmative defense to a state criminal 20 charge prior to a judgment of conviction by a state court.” Braden, 410 U.S. at 489 21 (citation omitted); see also Carden v. Montana, 626 F.2d 82, 83-84 (9th Cir. 1980) 22 (observing that Braden “reaffirmed the established rule that federal adjudication of 23 an affirmative defense prior to a state criminal trial” violates the Younger abstention 24 doctrine and is “prohibited by principles of comity unless the petitioner could show 25 that ‘special circumstances’ warranted federal intervention”). Abstention principles 26 require a federal court to abstain from exercising habeas jurisdiction when the 27 petitioner seeks relief based on an affirmative defense to the state prosecution, and 28 the only exceptions to that rule are (a) when a prosecution is proven to be 1 undertaken in bad faith and is baseless, or (b) when extraordinary circumstances 2 exist and irreparable injury is shown. Brown v. Ahern, 676 F.3d 899, 903 (9th Cir. 3 2012) see also id. at 900-01 (recognizing that “federal court’s exercise of 4 jurisdiction over a habeas petition that raises an affirmative defense to state 5 prosecution before trial and conviction can have the same effect as a direct 6 injunction of ongoing state proceedings” and, thus, Younger prohibits considering 7 the petition). 8 Younger and its progeny reflect a longstanding public policy against federal court 9 interference with pending state court proceedings. See Green v. City of Tucson, 255 10 F.3d 1086, 1094 (9th Cir. 2001) (en banc); H.C. v. Koppel, 203 F.3d 610, 613 (9th 11 Cir. 2000). Principles of comity and federalism require federal courts to abstain 12 from interfering with ongoing state criminal proceedings, absent extraordinary 13 circumstances that create a threat of irreparable injury. Younger, 401 U.S. at 43-45. 14 Younger abstention applies to both attempts to preclude and/or stay criminal 15 prosecution in toto and attempts to obtain more limited or piecemeal intervention in 16 state criminal actions. See, e.g., Kugler v. Helfant, 421 U.S. 117, 130 (1975) 17 (federal courts should not “intervene piecemeal to try collateral issues” in state 18 criminal prosecutions, such as a request to enjoin the admission of evidence); 19 Dubinka v. Judges of the Superior Court, 23 F.3d 218, 223 (9th Cir. 1994) (a request 20 to enjoin enforcement of a criminal discovery statute and to suppress evidence 21 obtained under that statute could not be entertained). 22 The concerns that motivate the Younger doctrine preclude this Court from 23 granting both Petitioner’s initial Request to stay his trial in the Pending Criminal 24 Case (now apparently withdrawn) and his request for broader habeas relief through 25 the Petition, and they require abstention and dismissal of this action. The Court 26 finds that the four Younger elements exist here. 27 The first and second Younger elements are satisfied, because the Pending 28 Criminal Case is ongoing, as are Case Nos. GA105379 and BA428706, about which 1 Petitioner also makes various complaints. These pending Los Angeles County 2 Superior Court criminal cases implicate important state interests. The State of 3 California’s interest in prosecuting individuals charged with violating its laws is 4 indisputable. Kelly v. Robinson, 479 U.S. 36, 49 (1986) (“This Court has 5 recognized that the States’ interest in administering their criminal justice systems 6 free from federal interference is one of the most powerful of the considerations that 7 should influence a court considering equitable types of relief.”) (citing Younger); 8 Rose v. Mitchell, 443 U.S. 545, 585 (1979) (Powell, J., concurring) (“This Court 9 repeatedly has recognized that criminal law is primarily the business of the States, 10 and that absent the most extraordinary circumstances the federal courts should not 11 interfere with the States' administration of that law.”). 12 In the Response (at p. 24), Petitioner makes the novel argument that the Pending 13 Criminal Case is “not ongoing,” and that his state criminal cases do not implicate 14 important state interests, because the trial judge has made erroneous rulings 15 regarding Petitioner’s mental competency, pro per rights, etc. (which, in turn, have 16 delayed his trial), the trial judge is biased and prejudiced, the trial judge has abused 17 her authority, and Brady errors have occurred. Whether or not these allegations 18 ultimately could be proved, they stem from and go directly to the substance and 19 merits of Petitioner’s asserted 12 habeas claims; they have nothing to do with the 20 first two Younger elements. That error is alleged to have occurred in connection 21 with an ongoing state criminal case does not render the case not ongoing or vitiate a 22 state’s interest in prosecuting those charged with violating its laws. Petitioner 23 further argues (id.) that until the prosecutor “proves” that Petitioner “is the correct 24 body in case (No. GA105379),” no pending state criminal proceedings exist. This 25 contention is frivolous. As noted above, Petitioner either is or is not the criminal 26 defendant in No. GA105379 (and there is no reason to believe he is not). If 27 (inexplicably) he is not, his complaints about the events in that case have no place 28 here, and if he is, that case clearly is pending, as is the Pending Criminal Case on 1 which the Petition is founded. Petitioner’s arguments are meritless and 2 disingenuous, and the first and second elements supporting Younger abstention 3 plainly are satisfied. 4 With respect to the third Younger element, the issues Petitioner raises in the 5 instant Petition, if cognizable as constitutional claims, are matters of affirmative 6 defense and can be raised within his pending criminal case and on state appeal 7 should he be convicted. Thus, he has an opportunity to raise his constitutional 8 claims in state court. The Supreme Court has made clear that the third element is 9 satisfied if the constitutional claims may be raised in state court judicial review. See 10 Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., 477 U.S. 619, 629 11 (1986); see also Dubinka, 23 F.3d at 224 (the existence of an opportunity to raise 12 federal claims in state proceedings requires abstention). 13 Finally, with respect to the fourth element, the issues raised by the Petition, the 14 Request, and the Response plainly threaten to interfere with Petitioner’s state 15 criminal proceeding(s) in a manner that contravenes Younger, regardless of his after- 16 the-fact attempt to avoid the abstention doctrine by now claiming not to wish to stay 17 his criminal case(s) at this time. Petitioner asks the Court to render findings that go 18 to the core of those proceedings, including on such matters, inter alia, as whether he 19 is being denied defense material improperly, or whether his counsel improperly 20 declared a conflict and intruded in a second criminal case, or whether he should not 21 have been charged with violating a restraining order when the victim was not named 22 in the underlying restraining order, or whether the trial judge has rendered improper 23 pretrial rulings on numerous matters, acted properly and should have been 24 disqualified, or whether or not the prosecutor is violating Brady or has altered 25 evidence or committed fraud upon the trial court. This is as clear an example as 26 could be of a request for habeas relief that directly interferes with state criminal 27 proceedings in derogation of principles of federalism and comity. The Petition asks 28 this federal court to insert itself into the Pending Criminal Case (and possibly two 1 other pending state criminal cases) to a degree that directly interferes with the state 2 court’s handling of the case(s). This is something that Younger will not 3 countenance. 4 While, as noted above, there is a limited exception to Younger when bad faith, 5 harassment, or some other extraordinary circumstance causing irreparable injury 6 exists, the Petition does not come close to establishing any such exception. First, 7 “[o]nly in cases of proven harassment or prosecutions undertaken by state officials 8 in bad faith without hope of obtaining a valid conviction and perhaps in other 9 extraordinary circumstances where irreparable injury can be shown is federal 10 injunctive relief against pending state prosecutions appropriate.” Perez v. Ledesma, 11 401 U.S. 82, 85 (1971); see also Juidice v. Vail, 430 U.S. 327, 338 (1977) (without 12 proof of bad faith or harassment, federal courts must abstain from intervention). 13 Nothing in the Petition nor in the Request nor in the Response proves that the State 14 of California has prosecuted Petitioner in bad faith without hope of obtaining a valid 15 conviction. Petitioner’s rambling and at times confusing allegations are just that – 16 unsupported allegations – and they fail to provide any basis for concluding that the 17 above-noted narrow exception to Younger might apply here. Moreover, even if the 18 trial court erred in one or more rulings as Petitioner claims, this is insufficient to 19 establish bad faith or harassment. Hicks v. Miranda, 422 U.S. 332, 251 (1975) 20 Second, the more general extraordinary circumstances coupled with irreparable 21 injury exception can be invoked “only in the most unusual circumstances” to 22 warrant interference with a state criminal case before “the jury comes in, judgment 23 has been appealed from and the case concluded in the state courts.” Drury v. Cox, 24 457 F.2d 764, 765-65 (9th Cir. 1872) (per curiam). Irreparable injury does not exist 25 if the threat to a petitioner’s federally protected rights may be eliminated by his 26 defense of the pending case. Younger, 401 U.S. at 46. Injuries stemming from “the 27 cost, the anxiety, and inconvenience of having to defend against a single criminal 28 prosecution, could not by themselves be considered ‘irreparable’ in the special legal 1 || sense of that term” to justify federal court intervention; rather, the “threat to the 2 || [Petitioner’s] federally protected rights must be one that cannot be eliminated by his 3 || defense against a single criminal prosecution.” Jd. Here, Petitioner’s allegations 4 || rest on matters that have occurred within his pending criminal case(s), and their 5 || asserted injurious effect may still be mooted should he prevail at trial or, if 6 || convicted, on appeal. 7 Petitioner has not demonstrated the type of “special circumstances” that warrant 8 || federal intervention. Neither the Request nor the Petition nor the Response set forth 9 || (much less prove) any reason for this Court to disregard comity and interfere in an 10 || ongoing state criminal case. As a result, Petitioner’s allegations do not merit federal 11 |} intervention, and comity dictates that this Court not interfere in his state criminal 12 || proceeding. The Court, therefore, must abstain in this case and dismiss the action. 13 Accordingly, IT IS ORDERED that: the Request is deemed withdrawn at 14 || Petitioner’s request, and thus, a stay will not be ordered; the Petition is dismissed 15 || without prejudice; and Judgment shall be entered dismissing this action without 16 || prejudice. 17 In addition, pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in 18 || the United States District Courts, the Court has considered whether a certificate of 19 || appealability is warranted in this case (if one, in fact, would be required). See 28 20 || U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). The Court 21 || concludes that a certificate of appealability is unwarranted, and thus, a certificate of 22 || appealability is DENIED. 23 IT IS SO ORDERED. 24 25 || DATED: October 22, 2019 Abani O Cat 6 DAVID O. CARTER UNITED STATES DISTRICT JUDGE 27 28 14

1 || PRESENTED BY:

3 || GAIL J. STANDISH 4 || UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15