Opinion
1:21-cv-01735-JLT-HBK (HC)
02-22-2023
NICOLAS ANDRES MARROQUIN, Petitioner, v. M.B. ATCHLEY, Respondent.
ORDER GRANTING RESPONDENT'S MOTION TO MODIFY AND ORDER TO PETITIONER TO SHOW CAUSE WHY AMENDED PETITION SHOULD NOT BE DISMISSED AS PREMATURE OR FILE NOTICE OF VOLUNTARY DISMISSAL
This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Cal. 2022).
(DOC. NO. 18)
HELENA M. BARCH-KUCHTA, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Respondent's motion to modify the briefing schedule and to accept its incorporated motion to dismiss as Respondent's response to Petitioner's Amended Petition in lieu of an answer to the Amended Petition. (Doc. No. 18). Respondent notifies the Court that it recently learned Petitioner's sentence is not yet final because Petitioner has not yet been resentenced pursuant to the California Court of Appeal's order reversing the substantive gang conviction and remanding for resentencing. (Id. at 2-3). Because Petitioner's remand proceedings remain pending, Respondent moves to dismiss the Amended Petition, without prejudice, as premature under Younger v. Harris, 401 U.S. 37 (1971). The Court grants Respondent's motion to modify the briefing schedule and accepts the motion to dismiss as Respondent's response to the Amended Petition. The Court further directs Petitioner to show cause why the Court should not grant the motion to dismiss and dismiss the Amended Petition, without prejudice, as premature. Alternatively, Petitioner may file a notice to voluntarily dismiss the Amended Petition, without prejudice, under Federal Rule of Civil Procedure 41 since Respondent has not filed an answer. Once Petitioner's remand proceedings have concluded, Plaintiff may seek federal habeas review.
Petitioner is advised that for purposes of § 2254 habeas review, a conviction is final when “a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied.” Griffith v. Kentucky, 478 U.S. 314, 321 n. 6 (1987). The seminal case of Younger v. Harris, 401 U.S. 37, 44 (1971) applies when a petitioner's conviction is not yet final. In Younger, the Supreme Court held that a federal court generally cannot interfere with pending state criminal proceedings. This holding, commonly referred to as the Younger abstention doctrine, is based on the principle of federal-state comity and is appropriate when: “(1) there is an ongoing state judicial proceeding; (2) the proceeding implicates important state interests; (3) there is an adequate opportunity in the state proceedings to raise constitutional challenges; and (4) the requested relief seeks to enjoin or has the practical effect of enjoining the ongoing state judicial proceeding.” Page v. King, 932 F.3d 898, 901-902 (9th Cir. 2019) (quoting Arevalo v. Hennessy, 882 F.3d 763, 765 (9th Cir. 2018) (alterations and internal quotation marks omitted)). In the habeas context, “[w]here . . . no final judgment has been entered in state court, the state court proceeding is plainly ongoing for purposes of Younger” Id. at 902. Absent rare circumstances, a district court must dismiss such actions. See Cook v. Harding, 190 F.Supp.3d 921, 935, 938 (C.D. Cal. 2016), aff'd, 879 F.3d 1035 (9th Cir. 2018); Perez v. Ledesma, 401 U.S. 82, 85 (1971) (“Only in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown” is federal intervention in an on-going state criminal proceeding appropriate.).
Accordingly it is ORDERED:
1. Respondent's motion to modify briefing schedule and to accept motion to dismiss as Respondent's response to the Amended Petition (Doc. No. 18) is GRANTED.
2. Petitioner shall SHOW CAUSE why the Amended Petition should not be dismissed as premature. Petitioner must deliver his response to this Show Cause Order to correctional officials for mailing no later than March 22, 2023.
3. In the alternative, by the same date, Petitioner may file a notice to voluntarily dismiss the Amended Petition, without prejudice.
4. If Petitioner does not timely respond to this SHOW CAUSE ORDER, the Court will deem Respondent's motion to dismiss submitted and ripe for review.