Todd Vincent Davie v. Sheriff Alex Villanueva

CIVIL MINUTES – GENERAL

Case No. CV 20-6580 MWF (PVC) Date: August 20, 2020

Title Todd Vincent Davie v. Sheriff Alex Villanueva

Present: The Honorable Pedro V. Castillo, United States Magistrate Judge

Marlene Ramirez None

Deputy Clerk Court Reporter / Recorder

Attorneys Present for Petitioner: Attorneys Present for Respondent:

None None

PROCEEDINGS: [IN CHAMBERS] ORDER TO SHOW CAUSE WHY THE

MAGISTRATE JUDGE SHOULD NOT RECOMMEND THAT

THIS ACTION BE DISMISSED PURSUANT TO THE

YOUNGER ABSTENTION DOCTRINE, OR, IN THE

ALTERNATIVE, BECAUSE PETITIONER’S CLAIMS ARE

UNEXHAUSTED

Pending before the Court is a habeas petition filed by pro se petitioner Todd

Vincent Davie, a pretrial detainee in the custody of the Los Angeles County Sheriff’s

Department, pursuant to 28 U.S.C. § 2241.1 (“Petition,” Dkt. No. 1 at 2). Petitioner

states that he has been charged with assault likely to produce great bodily injury under

California Penal Code § 245(a)(4), and has been awaiting trial since November 26, 2019.

1 The Petition is presented on a habeas form ostensibly under 28 U.S.C. § 2254.

However, § 2254 applies only to persons in custody as a result of a state court judgment.

Id. § 2254(a). Because Petitioner has not yet been convicted, § 2254 does not apply.

Therefore, the Court will construe the Petition as arising under § 2241. See Dominguez v.

Kernan, 906 F.3d 1127, 1136 (9th Cir. 2018) (pretrial detainees “may avail themselves of

habeas relief under § 2241(a) and (c)(3) without regard to the additional requirements

imposed on petitions under § 2254”).

CIVIL MINUTES – GENERAL

Case No. CV 20-6580 MWF (PVC) Date: August 20, 2020

Title Todd Vincent Davie v. Sheriff Alex Villanueva

(Id.). Although the Petition is not entirely clear, it appears that Petitioner’s trial may have

been delayed because he has been declared incompetent. (Id. at 3).

The Petition purports to raise five grounds for federal habeas relief: (1) the

criminal charges against Petitioner should be dismissed because Petitioner’s right to a

speedy trial has been violated; (2) the state’s denial of Petitioner’s speedy trial rights is

arbitrary and capricious; (3) the incompetency finding was not based on convincing

evidence and Petitioner’s seven Marsden motions were improperly denied;2 (4) state

regulations negligently fail to protect Petitioner because he prepares “the foods” in close

contact and is “susceptible of contracting the flu & [corona]virus”; and (5) Petitioner’s

bail is excessive. (Id. at 5-6). However, it appears that Petitioner’s claims are subject to

dismissal pursuant to the Younger abstention doctrine, or, in the alternative, because they

are unexhausted.3

The Younger Abstention Doctrine

As a general proposition, federal courts must abstain from enjoining a state

2 In California, a criminal defendant’s motion to have his counsel relieved and substitute

counsel appointed “in shorthand is called a Marsden motion,” pursuant to People v.

Marsden, 2 Cal. 3d 118 (1970). Schell v. Witek, 2018 F.3d 1017, 1021 (9th Cir. 2000).

3 Although Petitioner filed the instant Petition pro se, he states that he is represented by

the County Public Defender in his pending superior court criminal action. (Petition at 8).

As a general matter, a “defendant does not have a constitutional right to ‘hybrid’

representation.” United States v. Kienenberger, 13 F.3d 1354, 1356 (9th Cir. 1994); see

also McMeans v. Brigano, 228 F.3d 674, 684 (2000) (no constitutional right for

represented prisoner to file additional brief pro se). However, because it appears that

dismissal of this action may be warranted under the Younger abstention doctrine, or,

alternatively, because Petitioner’s claims are unexhausted, it is unnecessary for the Court

to address the propriety of Petitioner’s self-representation in this habeas action while he

continues to be represented by counsel in his underlying criminal proceedings.

CIVIL MINUTES – GENERAL

Case No. CV 20-6580 MWF (PVC) Date: August 20, 2020

Title Todd Vincent Davie v. Sheriff Alex Villanueva

prosecution except in exceptional circumstances where the danger of irreparable harm is

both great and immediate. Younger v. Harris, 401 U.S. 37, 45-46 (1971); Sprint

Commc’n., Inc. v. Jacobs, 571 U.S. 69, 72 (2013). This concept is referred to as the

doctrine of abstention or the Younger doctrine. Although “application of Younger does

not lead to the determination that the federal courts have no basis for jurisdiction in the

first instance” while state proceedings are pending, “the federal courts have bound

themselves pursuant to principles of comity to voluntarily decline to exercise jurisdiction

that they have and would otherwise exercise.” Canatella v. State of California, 404 F.3d

1106, 1116 (9th Cir. 2005) (emphasis in original; internal citation omitted).

Younger abstention in favor of a state proceeding is appropriate if three criteria are

met: (1) the state proceedings are ongoing; (2) the proceedings implicate important state

interests; and (3) the state proceedings provide an adequate opportunity to litigate the

plaintiff’s federal constitutional claims. See Middlesex County Ethics Comm. v. Garden

State Bar Ass’n, 457 U.S. 423, 432 (1982); Kenneally v. Lungren, 967 F.2d 329, 331-32

(9th Cir. 1992). However, federal courts will not abstain if the movant can establish that

the state proceedings are being undertaken in bad faith or for purposes of harassment, or

that some other “extraordinary circumstances” exist, such as where proceedings are being

conducted pursuant to a “flagrantly” unconstitutional statute. Younger, 401 U.S. at 49,

53-54. When a federal court determines that the Younger doctrine applies, it must

dismiss the pending action without prejudice. See Beltran v. California, 871 F.2d 777,

782 (9th Cir. 1988) (“Where Younger abstention is appropriate, a district court cannot

refuse to abstain, retain jurisdiction over the action, and render a decision on the merits

after the state proceedings have ended. To the contrary, Younger abstention requires

dismissal of the federal action.”) (emphasis omitted).

It is undisputed that Petitioner’s criminal proceedings in state court are still

pending. It is further beyond serious debate that state criminal proceedings involve

important state interests. See, e.g., Justices of Bos. Mun. Court v. Lydon, 466 U.S. 294,

333 (1984) (J. Stevens, concurring) (“One of the weightiest of state interests is that

CIVIL MINUTES – GENERAL

Case No. CV 20-6580 MWF (PVC) Date: August 20, 2020

Title Todd Vincent Davie v. Sheriff Alex Villanueva

favoring speedy, efficient, and uninterrupted disposition of criminal cases.”).

Accordingly, application of the Younger abstention doctrine in this case turns on whether

the state proceedings provide an adequate opportunity to litigate Petitioner’s federal

constitutional claims, or, if they do, whether “extraordinary circumstances” warrant an

exception to the doctrine.

The Ninth Circuit has expressly found that pretrial detention in alleged violation of

the Speedy Trial Clause is not, by itself, an “extraordinary circumstance” warranting an

exception to Younger. Accordingly, as the Ninth Circuit explains, the Younger abstention

doctrine will typically require dismissal of a federal habeas action when a pretrial

detainee seeks dismissal of state charges against him under the Speedy Trial Clause:

[T]he rule of this circuit is that abstention principles generally require a

federal district court to abstain from exercising jurisdiction over a habeas

petition in which the petitioner raises a claim under the Speedy Trial Clause

as an affirmative defense to state prosecution. The only exceptions are

“cases of proven harassment or prosecutions undertaken by state officials in

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

extraordinary circumstances where irreparable injury can be shown.”

Brown v. Ahern, 676 F.3d 899, 903 (9th Cir. 2012) (quoting Carden v. Montana, 626

F.2d 82, 84 (9th Cir. 1980)); see also Braden v. 30th Judicial Circuit Court of Kentucky,

410 U.S. 484, 489 (1973) (“[F]ederal habeas corpus does not lie, absent ‘special

circumstances,’ to adjudicate the merits of an affirmative defense to a state criminal

charge prior to a judgment of conviction by a state court.”) (citation omitted). In sum, in

the vast majority of cases, a pretrial detainee “must wait to bring a Speedy Trial claim in

federal court until after trial and conviction.” Brown, 676 F.3d at 901 (Younger

abstention applies where the pretrial detainee can “prove no injury independent of the

Speedy Trial violation itself”).

CIVIL MINUTES – GENERAL

Case No. CV 20-6580 MWF (PVC) Date: August 20, 2020

Title Todd Vincent Davie v. Sheriff Alex Villanueva

Similarly, courts in this Circuit have routinely found that excessive bail claims

may be subject to Younger abstention. For example, in Robinson v. Sniff, 2009 WL

1037716 (C.D. Cal. Apr. 17, 2009), the court dismissed Petitioner’s habeas petition

raising an excessive bail claim upon finding that “all the prerequisites to the application

of abstention under Younger have been met.” Id. at *1. The court explained:

First, petitioner is currently the subject of a criminal proceeding in state

court, which is ongoing and has not reached final adjudication. Second, the

State undeniably has an important interest in protecting the public by the

filing and prosecuting of criminal proceedings. Third, the state court

criminal proceedings afford an opportunity for petitioner, who is the

defendant, to raise constitutional claims regarding the lack of probable

cause, excessive bail and lack of discovery, such as petitioner raises herein.

Finally, the remedy the petitioner seeks, the issuance of a writ of habeas

corpus, would clearly interfere with the ongoing state criminal proceeding,

and petitioner has not identified any “extraordinary circumstances”

warranting an exception to the Younger doctrine.

Id. (internal citations and parentheticals omitted). The Robinson court further concluded

that because petitioner was “seeking federal court review of a state criminal proceeding

. . . before he has exhausted his state court remedies regarding his conviction and

sentence,” his “habeas petition [was] premature” and “comity and the interest of judicial

economy” would be served by affording the state courts the first opportunity to examine

the lawfulness of petitioner’s detention. Id. at *2; see also Lazarus v. Baca, 2010 WL

1006572, at *6 (C.D. Cal. Mar. 17, 2010), aff’d, 389 F. App’x 700 (9th Cir. 2010)

(dismissing excessive bail claim on habeas review under Younger).

However, in Arevalo v. Hennessy, 882 F.3d 763 (9th Cir. 2018), the Ninth Circuit

concluded that Younger abstention was not appropriate where: the state conceded that

petitioner had been held for six months without a constitutionally adequate bail hearing;

CIVIL MINUTES – GENERAL

Case No. CV 20-6580 MWF (PVC) Date: August 20, 2020

Title Todd Vincent Davie v. Sheriff Alex Villanueva

success on the claim would not interfere with petitioner’s state court proceedings; and

petitioner had “properly exhausted his state remedies as to his bail hearing” in the

superior court, the California Court of Appeal, and the California Supreme Court before

bringing his habeas claim to federal court. (Id. at 767).

Finally, Petitioner will clearly be able to raise the federal nature of his remaining

claims in state court, including any challenge to his incompetency finding and the denial

of his Marsden motions. Petitioner does not clearly develop his “failure to protect claim”

in Ground Four and it is unclear what specific relief he is seeking. However, to the

extent that he is seeking release on zero or reduced bail prior to trial due to health

concerns arising from the coronavirus pandemic, this claim overlaps with his excessive

bail claim. Furthermore, state courts can and do offer an adequate forum to litigate such

claims. See, e.g., In re Kalvin Ung, 2020 WL 4582595, at *3-*5 (Cal. Ct. App. Aug. 10,

2020) (unpublished) (granting in part pretrial detainee’s habeas petition seeking release

on bail and ordering trial court to hold a hearing to “consider entering a new and different

order setting bail consistent with the [county’s] June 23, 2020 amended bail order,”

which was adopted to address inmate overcrowding during the COVID-19 pandemic).

Accordingly, it appears that Petitioner’s claims may be subject to the Younger

abstention doctrine because his state criminal action is still pending and the other criteria

for abstention appear satisfied. In response to this Order, Petitioner must explain why the

elements for Younger abstention are not present here, or identify any “extraordinary

circumstances” that would warrant an exception to Younger.

Exhaustion in State Court

Even if some or all of Petitioner’s claims are not subject to dismissal under

Younger, it appears that they may be dismissed on the alternate ground that they are

unexhausted. Petitioner admits that his claims have not been exhausted in the state

courts. (Petition at 5-6). Although habeas petitions challenging pretrial detention under

CIVIL MINUTES – GENERAL

Case No. CV 20-6580 MWF (PVC) Date: August 20, 2020

Title Todd Vincent Davie v. Sheriff Alex Villanueva

28 U.S.C. § 2241 are not subject to a statutory exhaustion requirement, principles of

federalism and comity require federal courts to abstain from hearing pretrial habeas

challenges unless the petitioner has first exhausted available state judicial remedies. As

the Ninth Circuit has explained,

As an exercise of judicial restraint, however, federal courts elect not to

entertain habeas corpus challenges [under § 2241] to state court

proceedings until habeas petitioners have exhausted state avenues for

raising federal claim.

Where a petitioner seeks pre-conviction habeas relief, this exhaustion

prerequisite serves two purposes: (1) to avoid isolating state courts from

federal constitutional issues by assuring those courts an ample opportunity

to consider constitutional claims; and (2) to prevent federal interference

with state adjudication, especially state criminal trials.

Carden, 626 F.2d at 83. To satisfy the exhaustion requirement, a petitioner must “fairly

present” his claims to the state courts in accordance with the state’s procedures. See

O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (habeas petitioner must give the state

courts “one full opportunity” to decide a federal claim by carrying out “one complete

round” of the state’s appellate process). The petitioner must present his claims, including

their federal basis, to the highest state court with jurisdiction to consider them or

demonstrate that no state remedy remains available. See Peterson v. Lampert, 319 F.3d

1153, 1156 (9th Cir. 2003) (en banc).

Accordingly, it appears that Petitioner’s claims are subject to dismissal for the

independent reason that they are unexhausted. In response to this Order, Petitioner must

explain why his claims are exhausted, despite his representation in the Petition that they

are not, or show why they should be exempt from the exhaustion requirement.

CIVIL MINUTES – GENERAL

Case No. CV 20-6580 MWF (PVC) Date: August 20, 2020

Title Todd Vincent Davie v. Sheriff Alex Villanueva

Conclusion and Order

Because Petitioner’s criminal proceedings are still pending in state court and

implicate important state interests, and because those proceedings would appear to

provide an adequate opportunity for Petitioner to litigate his federal constitutional claims,

it appears that the instant claims are subject to dismissal pursuant to the Younger

abstention doctrine. Furthermore, it appears that all of Petitioner’s claims are

unexhausted because he did not present them to the state courts. Petitioner is therefore

ORDERED TO SHOW CAUSE, within twenty-one (21) days of the date of this Order,

why this action should not be dismissed under Younger or, in the alternative, because

Petitioner’s claims are uniformly unexhausted. After the Court receives a response to the

OSC, the Court will prepare a Report and Recommendation for submission to the District

Judge. This Order is not dispositive of any of Petitioner’s claims.

Instead of filing a response to the instant Order to Show Cause, Petitioner

may request a voluntary dismissal of this action pursuant to Federal Rule of Civil

Procedure 41(a). A Notice of Dismissal form is attached for Petitioner’s

convenience. However, Petitioner is advised that any dismissed claims may be later

subject to the statute of limitations under 28 U.S.C. § 2244(d)(1), as amended by

AEDPA, which provides that “[a] 1-year period of limitation shall apply to an

application for a writ of habeas corpus by a person in custody pursuant to the

judgment of a State court.”

Petitioner is expressly warned that the failure to timely file a response to this

Order will provide a ground for a recommendation that this action be dismissed

with prejudice for his failure to comply with Court orders and failure to prosecute.

See Fed. R. Civ. P. 41(b). The Clerk of Court is directed to serve a copy of this Order

on Petitioner at his current address of record.

IT IS SO ORDERED.