(HC) Wilkins v. Price

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 RYAN MICHAEL WILKINS, No. 1:19-cv-00291-LJO-JLT (HC)

12 Petitioner, ORDER ADOPTING FINDINGS AND

RECOMMENDATIONS (DOC. NO. 18)

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ORDER GRANTING RESPONDENT’S

14 v. MOTION TO DISMISS (DOC. NO. 13)

15 ORDER DISMISSING PETITION FOR

WRIT OF HABEAS CORPUS

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BRANDON PRICE, ORDER DENYING PETITIONER’S

17 MOTION FOR STAY OF PROCEEDINGS

Respondent. (DOC. NO. 15)

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ORDER DIRECTING CLERK OF COURT

19 TO ENTER JUDGMENT AND CLOSE

CASE

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ORDER DECLINING TO ISSUE

21 CERTIFICATE OF APPEALABILITY

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24 Petitioner is a state prisoner proceeding in propria persona with a petition for writ of

25 habeas corpus pursuant to 28 U.S.C. § 2241. On September 4, 2019, the Magistrate Judge

26 assigned to the case issued Findings and Recommendation to grant Respondent’s motion to

27 dismiss and deny Petitioner’s motion for stay. (Doc. No. 18.) This Findings and

28 Recommendation was served upon all parties and contained notice that any objections were to be

1 filed within twenty-one days from the date of service of that order. On September 19, 2019,

2 Petitioner filed objections to the Magistrate Judge’s Findings and Recommendations. (Doc. No.

3 19.)

4 In the objections, Petitioner argues that the incorrect standard was applied. (Doc. 19 at 4-

5 6.) However, the Rules Governing Section 2254 Cases may be applied to petitions for writ of

6 habeas corpus other than those brought under § 2254 at the Court’s discretion. See Rule 1 of the

7 Rules Governing Section 2254 Cases. Civil Rule 81(a)(2) provides that the rules are “applicable

8 to proceedings for . . . habeas corpus . . . to the extent that the practice in such proceedings is not

9 set forth in statutes of the United States and has heretofore conformed to the practice of civil

10 actions.” Fed. R. Civ. P 81(a)(2). Regardless, under Younger abstention, the Court should abstain.

11 Petitioner continues to contend that Younger abstention does not apply to this case. (Doc.

12 19 at 9-11.) However, as thoroughly discussed in the Findings and Recommendation, all three

13 criteria for Younger abstention are satisfied, and no exception to Younger exists. (Doc. 18 at 4-

14 12.) It is appropriate for this Court to abstain from considering Petitioner's challenges to the

15 pending SVPA proceedings. See Babinski v. Voss, 323 Fed.Appx. 617 (9th Cir. 2009) (affirming

16 dismissal on Younger abstention grounds of habeas petition challenging ongoing California

17 SVPA proceedings).

18 Petitioner also raises the contention that the petition is not a mixed petition. (Doc. 19 at

19 11.) However, regardless of whether the petition is a mixed petition, it is appropriate for this

20 Court to abstain from considering Petitioner's challenges to the pending SVPA proceedings.

21 There is an ongoing state proceeding regardless of whether the claims are exhausted or not.

22 Petitioner also belatedly raises a new claim for relief in the objections, specifically, that

23 Petitioner has been denied the equal protection of law, creating a “class of one.” (Doc. 19 at 6-9.)

24 Because Petitioner failed to raise this claim in his petition, the court should disregard the

25 claim. See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (a traverse is not the

26 proper pleading to raise additional grounds for relief). However, subsequent case law holds that a

27 district court "has discretion, but is not required," to consider evidence and claims raised for the

28 first time in objections to a magistrate judge's report. United States v. Howell, 231 F.3d 615, 621

1 (9th Cir. 2000); see also Brown v. Roe, 279 F.3d 742, 745 (9th Cir. 2002) (remanded for district

2 court to exercise discretion whether to review new claim raised in objections). The district court

3 must, however, "actually exercise its discretion" and not merely accept or deny the new

4 claims. Howell, 231 F.3d at 622. In light of this discretion, the court will review this claim.

5 Because Petitioner did not include the new claim in his petition filed in the California

6 Supreme Court, the new claim is unexhausted. However, a court may dismiss a claim on the

7 merits notwithstanding a petitioner's failure to fully exhaust state judicial remedies. 28 U.S.C. §

8 2254(b)(2); Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005) (federal court considering

9 a habeas petition may deny an unexhausted claim on the merits when it is clear that the claim is

10 not colorable).

11 The Fourteenth Amendment's Equal Protection Clause is "essentially a direction that all

12 persons similarly situated should be treated alike." City of Cleburne, v. Cleburne Living Ctr., 473

13 U.S. 432, 439 (1985). Petitioner can establish an equal protection claim by showing that the

14 Respondent intentionally discriminated against Petitioner based on his membership in a protected

15 class, see Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001), or that similarly situated

16 individuals were treated differently without a rational basis for the difference in treatment. See

17 Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).

18 Petitioner makes no claim that he is a member of a protected class. Therefore, to state an

19 equal protection claim under the latter theory, Petitioner must allege that (1) he was intentionally

20 treated differently from other similarly situated individuals; and (2) there is no rational basis for

21 the difference in treatment. See Engquist v. Oregon Department of Agriculture, 553 U.S. 591, 601

22 (2008). In this case, Petitioner has failed to either provide any basis for showing either that he was

23 intentionally treated differently than others similarly situated or that there was no rational basis

24 for the difference in treatment. Thus, he is not entitled to federal habeas relief under an equal

25 protection theory.

26 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the Court has conducted a

27 de novo review of the case. Having carefully reviewed the entire file, including Petitioner's

28 objections, the Court concludes that the Magistrate Judge’s Findings and Recommendation is

1 supported by the record and proper analysis. Petitioner's objections present no grounds for

2 questioning the Magistrate Judge's analysis.

3 In addition, the Court declines to issue a certificate of appealability. A state prisoner

4 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of

5 his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537

6 U.S. 322, 335-336 (2003). A successive petition under 28 U.S.C. § 2255 that is disguised as a §

7 2241 petition required a certificate of appealability. Harrison v. Ollison, 519 F.3d 952, 958 (9th

8 Cir. 2008); Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir. 2001). The controlling statute in

9 determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as

10 follows:

11 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district

judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit

12 in which the proceeding is held.

13 (b) There shall be no right of appeal from a final order in a proceeding to test the

validity of a warrant to remove to another district or place for commitment or trial a person

14 charged with a criminal offense against the United States, or to test the validity of such person's

detention pending removal proceedings.

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(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may

16 not be taken to the court of appeals from—

17 (A) the final order in a habeas corpus proceeding in which the detention

complained of arises out of process issued by a State court; or

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(B) the final order in a proceeding under section 2255.

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(2) A certificate of appealability may issue under paragraph (1) only if the applicant has

20 made a substantial showing of the denial of a constitutional right.

21 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue

or issues satisfy the showing required by paragraph (2).

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If a court denies a petitioner’s petition, the court may only issue a certificate of

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appealability when a petitioner makes a substantial showing of the denial of a constitutional right.

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28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that

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“reasonable jurists could debate whether (or, for that matter, agree that) the petition should have

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been resolved in a different manner or that the issues presented were ‘adequate to deserve

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1 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting

2 Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).

3 In the present case, the Court finds that Petitioner has not made the required substantial

4 showing of the denial of a constitutional right to justify the issuance of a certificate of

5 appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not

6 entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to

7 proceed further. Thus, the Court DECLINES to issue a certificate of appealability.

8 Accordingly, the Court orders as follows:

9 1. The Findings and Recommendations, filed September 4, 2019 (Doc. No. 18), is

10 ADOPTED IN FULL;

11 2. Respondent’s motion to dismiss (Doc. No. 13) is GRANTED;

12 3. Petitioner’s motion for stay (Doc. No. 15) is DENIED;

13 4. The petition for writ of habeas corpus is DISMISSED;

14 5. The Clerk of Court is DIRECTED to ENTER JUDGMENT and close the file; and,

15 6. The Court DECLINES to issue a certificate of appealability.

16 This order terminates the action in its entirety.

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IT IS SO ORDERED.

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19 Dated: October 28, 2019 /s/ Lawrence J. O’Neill _____

UNITED STATES CHIEF DISTRICT JUDGE

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