Robert Michael Vanleeuwen v. Warden

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

Case No. EDCV 21-1593-SVW (KK) Date: October 4, 2021

Title:

Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE

DONNISHA BROWN Not Reported

Deputy Clerk Court Reporter

Attorney(s) Present for Petitioner(s): Attorney(s) Present for Respondent(s):

None Present None Present

Proceedings: Order to Show Cause Why This Action Should Not Be Dismissed Because

Abstention Is Required

I.

INTRODUCTION

On September 17, 2021, Petitioner Robert Michael Vanleeuwen (“Petitioner”), a pre-trial

detainee at Cois M. Byrd Detention Center, constructively filed1 a pro se Petition for Writ of Habeas

Corpus (“Petition”) pursuant to 28 U.S.C. § 2254 (“Section 2254”). ECF Docket Nos. (“Dkts.”) 1,

1-2. Petitioner appears to challenge his pretrial confinement due to criminal charges pending in

Riverside County Superior Court and set forth two grounds for habeas relief: (1) “Petitioner was

engaged in conduct protected by the First Amendment rights to Petition and Free Speech” and (2)

“[I]t [is] a violation of due process when a prosecutor pursues charges in retaliation for the exercise

of constitutional and statutory rights.” Id. at 1, 23. As discussed below, the Court orders Petitioner

to show cause why the Petition should not be dismissed because abstention is required under

Younger v. Harris, 401 U.S. 37, 43-45 (1971) (“Younger”).

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1 Under the “mailbox rule,” when a pro se prisoner gives prison authorities a pleading to mail

to court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v.

Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted).

II.

THE PETITION IS SUBJECT TO DISMISSAL BECAUSE

YOUNGER ABSTENTION IS REQUIRED

A. APPLICABLE LAW

When a state prisoner “is challenging the very fact or duration of his physical imprisonment,

and the relief he seeks is a determination that he is entitled to immediate release or a speedier release

from that imprisonment, his sole federal remedy is a writ of habeas corpus.” Preiser v. Rodriguez,

411 U.S. 475, 500 (1973). “[T]he general grant of habeas authority in [28 U.S.C. § 2241] is available

for challenges by a state prisoner who is not in custody pursuant to a state court judgment [such as]

a defendant in pre-trial detention[.]” Stow v. Murashige, 389 F.3d 880, 886 (9th Cir. 2004) (citation

omitted) (holding a pretrial detainee’s request for federal habeas relief under 28 U.S.C. § 2241(c)(3) is

properly brought); Rosenbalm v. Mendocino Superior Ct., No. C 06-7412 SI(PR), 2007 WL 878522,

at *1 (N.D. Cal. Mar. 21, 2007) (“This court may entertain a petition for a writ of habeas corpus

under 28 U.S.C. § 2241(c)(3) by a person who is in custody but not yet convicted or sentenced.”).

Principles of comity and federalism, however, require federal courts to abstain from

interfering with pending state court proceedings. See Younger, 401 U.S. at 43-45. The Ninth

Circuit has held abstention is appropriate when: (1) there is “an ongoing state judicial proceeding”;

(2) the proceeding “implicate[s] important state interests”; (3) there is “an adequate opportunity in

the state proceedings to raise constitutional challenges”; and (4) the requested relief “seek[s] to

enjoin” or has “the practical effect of enjoining” the ongoing state judicial proceeding. Arevalo v.

Hennessy, 882 F.3d 763, 765 (9th Cir. 2018) (citing ReadyLink Healthcare, Inc. v. State Comp. Ins.

Fund, 754 F.3d 754, 758 (9th Cir. 2014)).

“Extraordinary circumstances,” may warrant exception to the “fundamental policy against

federal interference with state criminal prosecutions.” Younger, 401 U.S. at 46, 53-54; Brown v.

Ahern, 676 F.3d 899, 900-01 (9th Cir. 2012) (holding “abstention principles . . . prohibit a federal

court from considering a pre-conviction habeas petition that seeks preemptively to litigate an

affirmative constitutional defense unless the petitioner can demonstrate that ‘extraordinary

circumstances’ warrant federal intervention” (citing Carden v. State of Mont., 626 F.2d 82, 83 (9th

Cir. 1980))). To demonstrate an exception to Younger, a petitioner must show: (1) he would suffer

irreparable harm that is “both great and immediate” if the federal court declines jurisdiction; (2)

there is bad faith or harassment, on the part of state, in prosecuting him; or (3) the state court

system is biased against Petitioner’s federal claim. See Middlesex Cnty. Ethics Comm’n v. Garden

State Bar Ass’n, 457 U.S. 423, 432 (1982); Kugler v. Helfant, 421 U.S. 117, 124-25 (1975); Brown,

676 F.3d at 901 (citing Carden, 626 F.2d at 83).

B. ANALYSIS

As an initial matter, Petitioner is a pretrial detainee with a criminal case pending in the

Riverside County Superior Court. Dkt. 1 at 1, 4. Accordingly, the Petition is governed by 28 U.S.C.

§ 2241(c)(3). See Stow, 389 F.3d at 886.

Petitioner challenges various aspects of his ongoing state criminal proceedings, such as the

trial court’s issuance of a “criminal protective order[],” and seeks relief, including dismissal of his

criminal charges. Dkt. 1 at 4. Therefore, abstention is appropriate because all four Younger

abstention criteria are satisfied. First, Petitioner has an ongoing state judicial proceeding as he awaits

trial in his criminal case in Riverside County Superior Court. Id. at 1, 4. Second, the resolution of

state criminal proceedings clearly implicates important state interests. See Kelly v. Robinson, 479

U.S. 36, 49 (1986) (“The right to formulate and enforce penal sanctions is an important aspect of the

sovereignty retained by the States.” (citing Younger, 401 U.S. at 46)); Middlesex, 457 U.S. at 432

(“Proceedings necessary for the vindication of important state policies or for the functioning of the

state judicial system also evidence the state’s substantial interest in the litigation.”). Third, Petitioner

has “an adequate opportunity in the state proceedings to raise constitutional challenges,” either at

the trial or appellate level, and there appears to be nothing preventing Petitioner from doing so.2

See Arevalo, 882 F.3d at 765. Fourth, habeas relief from this Court in the form of release would

have the “practical effect” of enjoining the state court proceedings. See Bowell v. Paramo, No. CV-

17-9313-TJH (MAA), 2018 WL 4735721, at *4 (C.D. Cal. Aug. 6, 2018), report and recommendation

adopted, 2018 WL 4698250 (C.D. Cal. Sept. 28, 2018), certificate of appealability denied, No. 18-

56319, 2018 WL 6978341 (9th Cir. Dec. 20, 2018) (finding if the court were to grant emergency

release, “it necessarily would entail interference because the ongoing state proceeding effectively

would be terminated” (citing San Jose Silicon Valley Chamber of Com. Pol. Action Comm. v. City

of San Jose, 546 F.3d 1087, 1095-96 (9th Cir. 2008))).

Moreover, Petitioner fails to identify any “extraordinary circumstances” warranting the

Court’s interference as an exception under Younger. Petitioner provides no proof that he has been

the subject of harassment or that his continued prosecution is in bad faith and without hope of

obtaining a valid conviction. See Brown, 676 F.3d at 901. Petitioner’s various allegations, even

liberally construed, are conclusory and unsupported. See Collins v. People of the State of Cal., No.

CV-16-03703-DMG (KS), 2016 WL 4161973, at *2 (C.D. Cal. Aug. 1, 2016) (“Federal intervention

cannot be predicated on conclusory allegations and Petitioner provides no proof that his continued

prosecution by the state actually stems from bad faith and harassment and not some other basis.”).

Furthermore, Petitioner has not shown he will suffer “irreparable injury” by waiting until the state

court proceedings are concluded to bring his claims in this Court. See Younger, 401 U.S. at 46

(holding “irreparable injury is insufficient unless it is ‘both great and immediate’”).

Hence, under the circumstances of the instant case, abstention under Younger is warranted.

III.

ORDER

For the above reasons, the Petition appears subject to dismissal. Petitioner is therefore

ORDERED TO SHOW CAUSE why the Court should not dismiss the Petition because abstention

is required under Younger. Petitioner’s response to this Order must be received no later than

October 25, 2021. Petitioner must respond to this Order by choosing one of the following options:

1. Option One: Petitioner may file a written response informing the Court of any reason

demonstrating Petitioner is entitled to raise his First Amendment and due process claims on

federal habeas corpus at this time or extraordinary circumstances warranting this Court’s

immediate intervention in Petitioner’s state criminal proceedings.

2 Petitioner appears to have filed habeas petitions challenging various aspects of his pre-trial

detention in the California Court of Appeal in case numbers E077508 and E077361. Dkt. 1 at 2.

2. Option Two: Petitioner may file a First Amended Petition curing the above referenced

deficiencies. The First Amended Petition shall be complete in itself. It shall not refer in any

manner to the original Petition. In other words, Petitioner must start over when preparing

the First Amended Petition. If Petitioner chooses to file a First Amended Petition, he must

clearly designate on the face of the document that it is the “First Amended Petition,” it must

bear the docket number assigned to this case, and it must be retyped or rewritten in its

entirety, preferably on the court-approved form.

3. Option Three: Petitioner may voluntarily dismiss this action without prejudice. Petitioner

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

41(a). The Clerk of Court has attached a Notice of Dismissal form. However, the Court

warns any dismissed claims may be later subject to the statute of limitations, because “[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.” 28 U.S.C. § 2244(d)(1).

The Court expressly warns Petitioner that failure to timely file a response to this

Order will result in the Court dismissing this action without prejudice because abstention is

required and/or 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 and provide Petitioner with a blank form Petition for his use in filing a First

Amended Petition.

IT IS SO ORDERED.

PRISON IDENTIFICATION/BOOKING NO.

ADDRESS OR PLACE OF CONFINEMENT

Note: It is your responsibility to notify the Clerk of Court in writing of any

change of address. If represented by an attorney, provide his or her

name, address, telephone and facsimile numbers, and e-mail address.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CASE NUMBER:

CV

To be supplied by the Clerk of the United States District Court

FULL NAME (Include name under which you were convicted )

Petitioner,

v.

G __________________ AMENDED

PETITION FOR WRIT OF HABEAS CORPUS

BY A PERSON IN STATE CUSTODY

28 U.S.C. § 2254

NAME OF WARDEN, SUPERINTENDENT, JAILOR, OR AUTHORIZED

PERSON HAVING CUSTODY OF PETITIONER

Respondent. PLACE/COUNTY OF CONVICTION

PREVIOUSLY FILED, RELATED CASES IN THIS DISTRICT COURT

(List by case number)

CV

CV

INSTRUCTIONS - PLEASE READ CAREFULLY

1. To use this form, you must be a person who either is currently serving a sentence under a judgment against you in a California

state court, or will be serving a sentence in the future under a judgment against you in a California state court. You are asking for relief

from the conviction and/or the sentence. This form is your petition for relief.

2. In this petition, you may challenge the judgment entered by only one California state court. If you want to challenge

judgments entered by more than one California state court, you must file a separate petition for each court.

3. Make sure the form is typed or neatly handwritten. You must tell the truth and sign the form. If you make a false statement

of a material fact, you may be prosecuted for perjury.

4. Answer all the questions. You do not need to cite case law, but you do need to state the federal legal theory and operative facts

in support of each ground. You may submit additional pages if necessary. If you do not fill out the form properly, you will be asked to

submit additional or correct information. If you want to submit a legal brief or arguments, you may attach a separate memorandum.

5. You must include in this petition all the grounds for relief from the conviction and/or sentence that you challenge. You must

also state the facts that support each ground. If you fail to set forth all the grounds in this petition, you may be barred from presenting

additional grounds at a later date.

6. You must pay a fee of $5.00. If the fee is paid, your petition will be filed. If you cannot afford the fee, you may ask to proceed

in forma pauperis (as a poor person). To do that, you must fill out and sign the declaration of the last two pages of the form. Also, you

must have an authorized officer at the penal institution complete the certificate as to the amount of money and securities on deposit to

your credit in any account at the institution. If your prison account exceeds $25.00, you must pay the filing fee.

7. When you have completed the form, send the original and two copies to the following address:

Clerk of the United States District Court for the Central District of California

United States Courthouse

ATTN: Intake/Docket Section

255 East Temple Street, Suite TS-134

Los Angeles, California 90012

T1.his p eat ictoionnv iccotniocne rannsd:/or sentence.

2. prison discipline.

3. a parole problem.

4. other.

PETITION

1. Venue

a. Place of detention

b. Place of conviction and sentence

2. Conviction on which the petition is based (a separate petition must be filed for each conviction being attacked).

a. Nature of offenses involved (include all counts) :

b. Penal or other code section or sections:

c. Case number:

d. Date of conviction:

e. Date of sentence:

f. Length of sentence on each count:

g. Plea (check one):

Not guilty

Guilty

Nolo contendere

h. Kind of trial (check one):

Jury

Judge only

3. Did you appeal to the California Court of Appeal from the judgment of conviction? Yes No

If so, give the following information for your appeal (and attach a copy of the Court of Appeal decision if available):

a. Case number:

b. Grounds raised (list each):

(1)

(5)

(6)

c. Date of decision:

d. Result

4. If you did appeal, did you also file a Petition for Review with the California Supreme Court of the Court of Appeal

decision? Yes No

If so, give the following information (and attach copies of the Petition for Review and the Supreme Court ruling if available):

a. Case number:

b. Grounds raised (list each):

(1)

(2)

(3)

(4)

(5)

(6)

c. Date of decision:

d. Result

5. If you did not appeal:

a. State your reasons

b. Did you seek permission to file a late appeal? Yes No

6. Have you previously filed any habeas petitions in any state court with respect to this judgment of conviction?

G Yes G No

If so, give the following information for each such petition (use additional pages, if necessary, and attach copies of the petitions and the

rulings on the petitions if available):

a. (1) Name of court:

(2) Case number:

(b)

(c)

(d)

(e)

(f)

(5) Date of decision:

(6) Result

(7) Was an evidentiary hearing held? Yes No

b. (1) Name of court:

(2) Case number:

(3) Date filed (or if mailed, the date the petition was turned over to the prison authorities for mailing):

(4) Grounds raised (list each):

(a)

(b)

(c)

(d)

(e)

(f)

(5) Date of decision:

(6) Result

(7) Was an evidentiary hearing held? Yes No

c. (1) Name of court:

(2) Case number:

(3) Date filed (or if mailed, the date the petition was turned over to the prison authorities for mailing):

(4) Grounds raised (list each):

(a)

(b)

(c)

(d)

(e)

(f)

(7) Was an evidentiary hearing held? Yes No

7. Did you file a petition for certiorari in the United States Supreme Court? Yes No

If yes, answer the following:

(1) Docket or case number (if you know):

(2) Result:

(3) Date of result (if you know):

(4) Citation to the case (if you know):

8. For this petition, state every ground on which you claim that you are being held in violation of the Constitution,

laws, or treaties of the United States. Attach additional pages if you have more than five grounds. Summarize

briefly the facts supporting each ground. For example, if you are claiming ineffective assistance of counsel, you

must state facts specifically setting forth what your attorney did or failed to do.

CAUTION: Exhaustion Requirement: In order to proceed in federal court, you must ordinarily first exhaust

your state court remedies with respect to each ground on which you are requesting relief from the

federal court. This means that, prior to seeking relief from the federal court, you first must

present all of your grounds to the California Supreme Court.

a. Ground one:

(1) Supporting FACTS:

(2) Did you raise this claim on direct appeal to the California Court of Appeal? Yes No

(3) Did you raise this claim in a Petition for Review to the California Supreme Court? Yes No

(4) Did you raise this claim in a habeas petition to the California Supreme Court? Yes No

b. Ground two:

(1) Supporting FACTS:

(2) Did you raise this claim on direct appeal to the California Court of Appeal? Yes No

(3) Did you raise this claim in a Petition for Review to the California Supreme Court? Yes No

(4) Did you raise this claim in a habeas petition to the California Supreme Court? Yes No

c. Ground three:

(1) Supporting FACTS:

(2) Did you raise this claim on direct appeal to the California Court of Appeal? G Yes G No

(3) Did you raise this claim in a Petition for Review to the California Supreme Court? G Yes G No

(4) Did you raise this claim in a habeas petition to the California Supreme Court? G Yes G No

d. Ground four:

(1) Supporting FACTS:

(2) Did you raise this claim on direct appeal to the California Court of Appeal? G Yes G No

(3) Did you raise this claim in a Petition for Review to the California Supreme Court? G Yes G No

(4) Did you raise this claim in a habeas petition to the California Supreme Court? G Yes G No

e. Ground five:

(1) Supporting FACTS:

9. If any of the grounds listed in paragraph 8 were not previously presented to the California Supreme Court, state

briefly which grounds were not presented, and give your reasons:

10. Have you previously filed any habeas petitions in any federal court with respect to this judgment of conviction?

Yes No

If so, give the following information for each such petition (use additional pages, if necessary, and attach copies of the petitions and

the rulings on the petitions if available):

a. (1) Name of court:

(2) Case number:

(3) Date filed (or if mailed, the date the petition was turned over to the prison authorities for mailing):

(4) Grounds raised (list each):

(a)

(b)

(c)

(d)

(e)

(f)

(5) Date of decision:

(6) Result

(7) Was an evidentiary hearing held? Yes No

b. (1) Name of court:

(2) Case number:

(3) Date filed (or if mailed, the date the petition was turned over to the prison authorities for mailing):

(4) Grounds raised (list each):

(a)

(b)

(c)

(d)

(e)

(f)

(7) Was an evidentiary hearing held? Yes No

11. Do you have any petitions now pending (i.e., filed but not yet decided) in any state or federal court with respect to

this judgment of conviction? Yes No

If so, give the following information (and attach a copy of the petition if available):

(1) Name of court:

(2) Case number:

(3) Date filed (or if mailed, the date the petition was turned over to the prison authorities for mailing):

(4) Grounds raised (list each):

(a)

(b)

(c)

(d)

(e)

(f)

12. Are you presently represented by counsel? Yes No

If so, provide name, address and telephone number:

WHEREFORE, petitioner prays that the Court grant petitioner all relief to which he may be entitled in this proceeding.

Signature of Attorney (if any)

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.

Executed on

Date Signature of Petitioner

Petitioner

Respondent(s) ELECTION REGARDING

CONSENT TO PROCEED BEFORE

A UNITED STATES MAGISTRATE JUDGE

• A magistrate judge is available under 28 U.S.C. § 636(c) to conduct all proceedings in this case,

including dispositive matters and entry of final judgment. However, a magistrate judge may be assigned

to rule on dispositive matters only if all parties voluntarily consent.

• Parties are free to withhold consent to magistrate judge jurisdiction without adverse substantive

consequences.

• If both parties consent to have a magistrate judge decide the case, any appeal would be made directly to

the Ninth Circuit Court of Appeals, as if a district judge had decided the matter.

• Unless both parties consent to have a magistrate judge decide the case, the assigned magistrate judge

will continue to decide only non-dispositive matters, and will issue a Report and Recommendation to

the district judge as to all dispositive matters.

Please check the “yes” or “no” box regarding your decision to consent to a United States Magistrate Judge

and sign below.

Yes, I voluntarily consent to have a United States Magistrate Judge conduct all further proceedings in this case, decide

all dispositive and non-dispositive matters, and order the entry of final judgment.

No, I do not consent to have a United States Magistrate Judge conduct all further proceedings in this case.

Executed on

Date Signature of Petitioner/Counsel for Petitioner

Petitioner

DECLARATION IN SUPPORT

OF REQUEST

TO PROCEED

Respondent(s) IN FORMA PAUPERIS

I, , declare that I am the petitioner in the above entitled case;

that in support of my motion to proceed without being required to prepay fees, costs or give security therefor, I state that

because of my poverty I am unable to pay the costs of said proceeding or to give security therefor; that I believe I am

entitled to relief.

1. Are you presently employed? Yes No

a. If the answer is yes, state the amount of your salary or wages per month, and give the name and address of your

employer.

b. If the answer is no, state the date of last employment and the amount of the salary and wages per month which

you received.

2. Have you received, within the past twelve months, any money from any of the following sources?

a. Business, profession or form of self-employment? Yes No

b. Rent payments, interest or dividends? Yes No

c. Pensions, annuities or life insurance payments? Yes No

d. Gifts or inheritances? Yes No

e. Any other sources? Yes No

If the answer to any of the above is yes, describe each source of money and state the amount received from each

during the past twelve months:

3. Do you own any cash, or do you have money in a checking or savings account? (Include any funds in prison accounts)

No

4. Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable property? (Excluding ordinary

household furnishings and clothing) Yes No

If the answer is yes, describe the property and state its approximate value:

5. List the persons who are dependent upon you for support, state your relationship to those persons, and indicate how

much you contribute toward their support:

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.

Executed on

Date Signature of Petitioner

CERTIFICATE

I hereby certify that the Petitioner herein has the sum of $ on account to his credit

at the institution where he is

confined. I further certify that Petitioner likewise has the following securities to his credit according to the records of said

institution:

Date Authorized Officer of Institution/Title of Officer

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CASE NUMBER

Plaintiff(s),

v.

NOTICE OF DISMISSAL PURSUANT

TO FEDERAL RULES OF CIVIL

PROCEDURE 41(a) or (c)

Defendant(s).

PLEASE TAKE NOTICE: (Check one)

G This action is dismissed by the Plaintiff(s) in its entirety.

G The Counterclaim brought by Claimant(s) is

dismissed by Claimant(s) in its entirety.

G The Cross-Claim brought by Claimants(s) is

dismissed by the Claimant(s) in its entirety.

G The Third-party Claim brought by Claimant(s) is

dismissed by the Claimant(s) in its entirety.

G ONLY Defendant(s)

is/are dismissed from (check one)G Complaint, G Counterclaim, G Cross-claim, G Third-Party Claim

brought by .

The dismissal is made pursuant to F.R.Civ.P. 41(a) or (c).

Date Signature of Attorney/Party

NOTE: F.R.Civ.P. 41(a): This notice may be filed at any time before service by the adverse party of an answer or of a motion for

summary judgment, whichever first occurs.

F.R.Civ.P. 41(c): Counterclaims, cross-claims & third-party claims may be dismissed before service of a responsive