Opinion
Civil No. 14cv3044-BTM (MDD)
02-08-2016
JUAN POOLE II, Petitioner, v. JEFFREY BEARD, Secretary, Respondent.
ORDER:
(1) ADOPTING THE FINDINGS AND CONCLUSIONS OF UNITED STATES MAGISTRATE JUDGE;
(2) GRANTING RESPONDENT'S MOTION TO DISMISS;
(3) DISMISSING THIRD AMENDED PETITION FOR A WRIT OF HABEAS CORPUS WITHOUT PREJUDICE; and
(4) DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
Juan Poole II (hereinafter "Petitioner"), is a California prisoner proceeding pro se and in forma pauperis with a Third Amended Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. (ECF No. 27.) Petitioner challenges his December 9, 2014, San Diego Superior Court conviction on one count of unlawfully taking and driving a vehicle with a prior conviction for vehicle theft, and one count of grand theft automobile with a prior vehicle theft, for which he was sentenced on January 9, 2014, to four years confinement in the San Diego County Jail. (Lodgment No. 1 [ECF No. 35-1] at 1.) Petitioner states that he was released from the jail onto probation on or about September 29, 2015, during the pendency of this action. (ECF No. 55.) He alleges that his federal Constitutional rights were violated by the trial court's refusal to grant or respond to his various requests during trial (Claim 1), his right to be free from cruel and unusual punishment was violated by cold, crowded, dangerous and unsanitary conditions in jail (Claim 2), his due process rights were violated when the prosecutor altered a video used at trial which was obtained through an unreasonable search and seizure (Claim 3), and he received ineffective assistance of counsel at trial (Claim 4). (TAP at 6-9.)
Respondent has filed Motion to Dismiss the Third Amended Petition. (ECF No. 34.) Respondent argues that because Petitioner's direct appeal is still pending in state court, his claims are unexhausted, and this Court must abstain from addressing such claims under Younger v. Harris, 401 U.S. 37 (1971). (MTD at 3-5.) Petitioner has filed a Traverse in which he argues abstention is not appropriate because he has done everything in his power to present his claims to the state courts. (ECF No. 38.)
United States Magistrate Judge Mitchell D. Dembin has filed a Report and Recommendation ("R&R") which recommends granting the Motion to Dismiss. (ECF No. 51.) The Magistrate Judge found that because Petitioner's direct appeal is currently pending in the state appellate court, Petitioner has failed to exhaust state court remedies as to his habeas claims, and this Court is required under Younger to abstain from addressing such claims. (R&R at 3-6.) The Magistrate Judge also found that Petitioner's conditions of confinement claim (Claim 2) is not cognizable on federal habeas, and should be dismissed without prejudice to Petitioner to present this claim in a separate civil rights complaint filed pursuant to 42 U.S.C. § 1983. (Id. at 7.)
Petitioner has filed Objections to the R&R. (ECF No. 58.) He contends the state appellate process is not capable of fully addressing his federal Constitutional claims, that abstention is not appropriate for his conditions of confinement claim, and that he has satisfied the exhaustion requirement by presenting his habeas claims to the state supreme court in a petition for a writ of mandate and a petition for a writ of habeas corpus. (Obj. at 1-8.)
The petition for a writ of mandate was transferred by the state supreme court to the state appellate court where it was denied (Lodgment No. 4 [ECF No. 35-3] at 1), and the petition for a writ of habeas corpus was denied by the state supreme court with citations to People v. Duvall, 9 Cal.4th 464, 474 (1995) and In re Swain, 34 Cal.2d 300, 304 (1949) (Lodgment No. 5 [ECF No. 35-5] at 1). Those filings do not appear to satisfy the exhaustion requirement. See Picard v. Connor, 404 U.S. 270, 275-76 (1971) (in order to exhaust state judicial remedies, claims must be "fairly presented" to the highest state court, that is, in a manner which allows that court to have "the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding."); Castille v. Peoples, 489 U.S. 346, 351 (1989) (the "fair presentation" requirement is not satisfied where a claim is presented in a manner which precludes consideration by the state court); Pombrio v. Hense, 631 F.Supp.2d 1247, 1251-52 (C.D. Cal. 2009) (explaining that a Duvall citation points to a correctable defect and does not support exhaustion); Swain, 34 Cal.2d at 304 ("We are entitled to and we do require of a convicted defendant that he allege with particularity the facts upon which he would have a final judgment overturned . . . [¶] The application for the writ is denied without prejudice to the filing of a new petition which shall meet the requirements above specified.") As discussed below, however, the Court need not reach the exhaustion issue.
The Court has reviewed the R&R pursuant to 28 U.S.C. § 636(b)(1), which provides that: "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). For the following reasons, the Court ADOPTS the Magistrate Judge's findings and conclusions, GRANTS Respondent's Motion to Dismiss, DISMISSES the Petition without prejudice, and DECLINES to issue a Certificate of Appealability.
1. Habeas Claims
The Court need not determine whether Petitioner has properly exhausted his state court remedies with respect to his habeas claims. The Ninth Circuit has held that district courts should abstain under Younger from adjudicating federal constitutional claims when a federal habeas petitioner's state appeal is pending, irrespective of whether state court remedies have been exhausted. Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983). The Magistrate Judge correctly concluded that under Younger, federal courts may not interfere with ongoing state criminal proceedings absent extraordinary circumstances. Younger, 401 U.S. at 45-46; see Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 431 (1982) (Younger "espouse[d] a strong federal policy against federal-court interference with pending state judicial proceedings.") These concerns are particularly important in the habeas context where a state prisoner's conviction may be reversed on appeal, thereby rendering the federal issue moot. Sherwood, 716 F.2d at 634.
Absent extraordinary circumstances, abstention under Younger is required when: (1) state judicial proceedings are ongoing; (2) the state proceedings involve important state interests; and (3) the state proceedings afford an adequate opportunity to raise the federal issue. Columbia Basin Apartment Ass'n v. City of Pasco, 268 F.3d 791, 799 (9th Cir. 2001). The Court adopts the finding of the Magistrate Judge that all three of these criteria are satisfied here. (R&R at 5.) Petitioner's appeal is currently ongoing, there is no question that the state criminal proceedings involve important state interests, and Petitioner's habeas claims are the type of claims the state courts afford an adequate opportunity to raise on direct appeal. Abstention is therefore required. See Huffman v. Pursue, Ltd., 420 U.S. 592, 608 (1975) (Younger applies to state appellate proceedings as well as ongoing proceedings in state trial court); see also Drury v. Cox, 457 F.2d 764, 764-65 (9th Cir. 1972) ("[O]nly in the most unusual circumstances is a defendant entitled to have federal interposition by way of injunction or habeas corpus until after the jury comes in, judgment has been appealed from and the case concluded in the state courts.")
Petitioner argues that extraordinary circumstances exist due to the nature of his claims, in that they allege bad faith regarding misconduct by the prosecutor at trial and the police during the investigation. (Obj. at 3-4.) Petitioner has not established that the allegations supporting his habeas claims cannot be adequately addressed on appeal. Because Petitioner has failed to demonstrate that extraordinary circumstances exist which would relieve this Court of its obligation to abstain from interfering with ongoing state criminal proceedings, his habeas claims are subject to dismissal without prejudice. Juidice v. Vail, 430 U.S. 327, 337 (1977) (holding that if Younger abstention applies, a court may not retain jurisdiction but should dismiss the action).
2. Conditions of Confinement Claim
With respect to Claim 2, alleging unconstitutional conditions of confinement while Petitioner was housed at the county jail, the Magistrate Judge found that the claim is not cognizable on habeas but is the type of claim which is properly brought in a civil rights action pursuant to 42 U.S.C. § 1983. In Preiser v. Rodriguez, 411 U.S. 475 (1973), the Court held that habeas is the exclusive remedy for a state prisoner challenging the fact or duration of his confinement and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that confinement, even though the claim may also come within the literal terms of section 1983. Id. at 488-500. On the other hand, a section 1983 action is a proper avenue for a state prisoner who is making a constitutional challenge to the conditions of his custody, but not to the fact or length of his custody. Id. at 499.
The Supreme Court has therefore concluded that state prisoners must use habeas corpus "when they seek to invalidate the duration of their confinement - either directly through an injunction compelling speedier release or indirectly through a judicial determination that necessarily implies the unlawfulness of the State's custody," Wilkinson v. Dotson, 544 U.S. 74, 81 (2005), and that claims which, if successful, would not entitle Petitioner to release from custody, are cognizable under section 1983. Edwards v. Balisok, 520 U.S. 641, 646-48 (1997); see also Mayle v. Felix, 545 U.S. 644. 671 n.4 (2005) ("the single, defining feature setting habeas cases apart from other tort claims against the State is that they 'necessarily demonsrat(e) the invalidity of the conviction.'"), quoting Heck v. Humphrey, 512 U.S. 477, 481-82 (1994).
It is clear that Claim 2, alleging unconstitutional conditions of confinement while Petitioner was housed at the county jail, is properly brought under 42 U.S.C. § 1983 and not habeas. The Court declines to construe the Petition as a complaint filed pursuant to 42 U.S.C. § 1983 because there is no indication Petitioner would be prejudiced by being required to file a separate civil rights action. See Willwording v. Swenson, 404 U.S. 249, 251 (1971) (holding that district courts have discretion to construe a habeas petition attacking conditions of confinement as a complaint under section 1983 despite deliberate choice by petitioner to proceed on habeas), superceded by statute on other grounds as recognized in Woodford v. Ngo, 548 U.S. 81, 84 (2006).
The Court ADOPTS the Magistrate Judge's findings and conclusions that Petitioner's conditions of confinement claim should be dismissed without prejudice to Petitioner to present this claim in a separate civil rights complaint.
3. Certificate of Appealability
When the district court dismisses claims on procedural grounds, the Court must decide "whether 'jurists of reason would find it debatable whether the district court was correct in its procedural ruling.'" Lambright v. Stewart, 220 F.3d 1022, 1026 (9th Cir. 2000), quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000). A petitioner may also be entitled to a certificate when the "questions are adequate to deserve encouragement to proceed further." Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983) (citation omitted), superseded on other grounds by 28 U.S.C. § 2253(c)(2). The Court finds that under those standards a Certificate of Appealability is not appropriate.
4. Conclusion and Order
The Court ADOPTS the findings and conclusions of the Magistrate Judge, GRANTS Respondent's Motion to Dismiss, DISMISSES the Third Amended Petition for a Writ of Habeas Corpus, and DECLINES to issue a Certificate of Appealability. The dismissal is without further leave to amend in this action, but without prejudice to Petitioner to present his habeas claims in a new federal habeas petition (which will be given a new civil case number) after his direct appeal is final, and without prejudice to Petitioner to present his conditions of confinement claim in a separate civil rights complaint.
The Clerk of Court shall enter judgment dismissing this action without prejudice and declining to issue a Certificate of Appealability.
IT IS SO ORDERED. DATED: February 8, 2016
/s/_________
BARRY TED MOSKOWITZ, Chief Judge
United States District Court