(HC) James J. Pulizzano v. State of California

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 JAMES JOSEPH PULIZZANO, No. 2:19-cv-01728 JAM GGH P

12 Petitioner,

13 v. FINDINGS AND RECOMMENDATIONS

14 THE STATE OF CALIFORNIA, et al.,

15 Respondents.

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17 Petitioner, a state prisoner proceeding in pro se, has filed an application for a writ of

18 habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to the United States

19 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302(c).

20 On September 13, 2019, the undersigned issued an order directing both parties to update

21 the court on whether petitioner’s state remedies had been fully exhausted. ECF No. 8. At the

22 time, it was unclear to the court whether petitioner’s resentencing proceedings had been

23 completed after a remand by the California Third Appellate District, Court of Appeal; and

24 whether petitioner had completed or began his direct appeal. Id. After reviewing petitioner and

25 respondent’s briefing, ECF Nos. 12, 13, it is apparent that petitioner’s habeas petition is

26 premature based on a pending direct appeal in the California Third Appellate District, Court of

27 Appeal. ECF No. 13-1 at 1.

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1 The exhaustion of state court remedies is a prerequisite to the granting of a petition for

2 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived

3 explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3). A waiver of exhaustion, thus, may not

4 be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the highest

5 state court with a full and fair opportunity to consider all claims before presenting them to the

6 federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083,

7 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). Here, the petition is premature because

8 petitioner has a pending direct appeal and accordingly, has not fully exhausted his available state

9 court remedies. See Daniels v. Nelson, 415 F.2d 323, 323 (9th Cir. 1969) (“Prisoner's petition for

10 writ of habeas corpus brought while his appeal of conviction was still pending in state court was

11 premature since he still had remedies available in state courts.”); see also Sherwood v. Tomkins,

12 716 F.2d 632, 634 (9th Cir. 1983) (“When, as in the present case, an appeal of a state criminal

13 conviction is pending, a would-be habeas corpus petitioner must await the outcome of his appeal

14 before his state remedies are exhausted, even where the issue to be challenged in the writ of

15 habeas corpus has been finally settled in the state courts.”)

16 Moreover, respondent argues the abstention doctrine requires dismissal of the federal

17 habeas petition in light of petitioner’s pending direct appeal of his criminal proceedings before

18 the California Third Appellate District, Court of Appeal. Younger abstention is appropriate when

19 the following criteria are met: (1) state judicial proceedings are pending; (2) the state proceedings

20 implicate important state interests; and (3) the state proceedings provide an adequate opportunity

21 in state court to raise constitutional challenges. See Middlesex County Ethics Committee v.

22 Garden State Bar Ass'n, 457 U.S. 423, 432, 102 S.Ct. 2515 (1982). Absent extraordinary

23 circumstances, this court is barred from directly interfering with petitioner's ongoing criminal

24 proceedings in state court. See Younger v. Harris, 401 U.S. 37, 46, 48–50 (1971); Brown v.

25 Ahern, 676 F.3d 899, 903 (9th Cir. 2012) (“abstention principles generally require a federal

26 district court to abstain from exercising jurisdiction over a habeas petition in which the petitioner

27 raises a claim under the Speedy Trial Clause as an affirmative defense to state prosecution.”);

28 Carden v. Montana, 626 F.2d 82, 84 (9th Cir. 1980) (exceptions to the general rule of federal

1 abstention arise only in “cases of proven harassment or prosecutions undertaken by state officials

2 in bad faith without hope of obtaining a valid conviction,” or “in other extraordinary

3 circumstances where irreparable injury can be shown.”). Younger abstention is appropriate here

4 due to the pendency of petitioner’s direct appeal in the Court of Appeal; the ongoing criminal

5 appeal proceedings that implicate important state interests; and petitioner’s adequate opportunity

6 to raise constitutional challenges in state court. Finally, there is no applicable exception to the

7 Younger abstention established in this case.

8 For these reasons, petitioner’s habeas petition should be dismissed without prejudice to

9 petitioner’s filing of a new federal habeas petition after the exhaustion of his state court remedies.

10 Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s petition for writ of

11 habeas corpus be dismissed without prejudice.

12 These findings and recommendations are submitted to the United States District Judge

13 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days

14 after being served with these findings and recommendations, petitioner may file written

15 objections with the court. The document should be captioned “Objections to Magistrate Judge's

16 Findings and Recommendations.” Failure to file objections within the specified time may waive

17 the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.1991).

18 Dated: November 18, 2019

/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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