# Buckelew v. Gore > District Court, S.D. California · May 28, 2020 URL: https://www.frixlaw.com/law-library/cases/10081203 ## Case - **Court:** District Court, S.D. California - **Decided:** May 28, 2020 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10081203 ## How later opinions describe it (automated extraction) - explaining that Supreme Court precedent establishes that “at 7 least in the absence of ‘extraordinary circumstances’ federal courts must refuse to 8 intervene in state criminal proceedings to suppress the use of evidence claimed to have 9 been obtained through unlawful means” - concluding that a request 11 to enjoin enforcement of a criminal discovery statute and to suppress evidence obtained 12 under that statute could not be entertained ## Opinion text 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DION SCOTT BUCKELEW, Case No.: 3:20-cv-0938-LAB-LL 12 Petitioner, ORDER DISMISSING CASE 13 v. WITHOUT PREJUDICE 14 WILLIAM D. GORE, Sheriff, et al., 15 Respondents. 16 17 Petitioner, a pretrial detainee at San Diego County Jail, proceeding pro se, has filed 18 a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. 19 FAILURE TO SATISFY THE FILING FEE REQUIREMENT 20 Petitioner has failed to pay the $5.00 filing fee and has failed to move to proceed in 21 forma pauperis. Because this Court cannot proceed until Petitioner has either paid the 22 $5.00 filing fee or qualified to proceed in forma pauperis, the Court DISMISSES the 23 case without prejudice. See Rule 3(a), 28 U.S.C. foll. § 2254. 24 BASIS FOR PETITION 25 Further, because Petitioner alleges in his current petition that he is in custody in the 26 San Diego County Jail awaiting trial, 28 U.S.C. § 2241, and not 28 U.S.C. § 2254, is the 27 proper vehicle to challenge his detention. While Petitioner alleges he is being held in 28 1 custody in violation of the United States Constitution, he is not currently in custody 2 pursuant to a judgment of a state court. As the Ninth Circuit has stated: 3 Section 2254 is properly understood as “in effect implement[ing] the general grant of habeas corpus authority found in § 2241 as long as the 4 person is in custody pursuant to the judgment of a state court, and not in 5 state custody for some other reason, such as pre-conviction custody, custody awaiting extradition, or other forms of custody that are possible without a 6 conviction.” [citations omitted.] 7 8 White v. Lambert, 370 F.3d 1002, 1006 (9th Cir. 2004) (quoting Walker v. O’Brien, 216 9 F.3d 626, 633 (7th Cir. 2000) (emphasis in original). Accordingly, if Petitioner seeks to 10 challenge the constitutionality of his pre-trial detention, he must file a petition for writ of 11 habeas corpus pursuant to 28 U.S.C. § 2241, not 28 U.S.C. § 2254. 12 ABSTENSION 13 In addition, the Court notes that, to the extent Petitioner challenges ongoing state 14 criminal proceedings, the Court must generally abstain from hearing such challenges. 15 Petitioner argues his defense counsel has been ineffective by, among other things, failing 16 to ask proper questions during his preliminary hearing. (See Pet., ECF No. 1 at 3.) He 17 also suggests the judge overseeing the criminal proceedings in his case is biased. (See 18 id.) 19 “Only a limited number of pre-trial challenges have been found cognizable under 20 Section 2241. Generally, pre-trial habeas challenges have been allowed only when a state 21 defendant contends he is being deprived of his right to a speedy trial or the Double 22 Jeopardy Clause will be violated if he is tried.” Fritz v. City of Los Angeles, 2012 WL 23 5197971, at *2 (C.D. Cal. Oct. 18, 2012) (citing Braden v. 30th Judicial Circuit Court of 24 Ky., 410 U.S. 484, 488-93 (1973)); McNeely v. Blanas, 336 F.3d 822, 824 n.1 (9th Cir. 25 2003) (as amended). However, as the Supreme Court has explained, “federal habeas 26 corpus does not lie, absent ‘special circumstances,’ to adjudicate the merits of an 27 affirmative defense to a state criminal charge prior to a judgment of conviction by a state 28 court.” Braden, 410 U.S. at 489. 1 Principles of comity and federalism require federal courts to abstain from 2 intervening in pending state criminal proceedings absent extraordinary circumstances. 3 See Younger v. Harris, 401 U.S. 37, 43-54 (1971). Younger abstention applies to both 4 attempts to preclude and/or stay criminal prosecutions and attempts to obtain more 5 limited or piecemeal intervention in state criminal actions. See, e.g., Kugler v. Helfant, 6 421 U.S. 117, 130 (1975) (explaining that Supreme Court precedent establishes that “at 7 least in the absence of ‘extraordinary circumstances’ federal courts must refuse to 8 intervene in state criminal proceedings to suppress the use of evidence claimed to have 9 been obtained through unlawful means”); Dubinka v. Judges of the Superior Court of 10 Cal. for the Cty. of L.A., 23 F.3d 218, 223–26 (9th Cir. 1994) (concluding that a request 11 to enjoin enforcement of a criminal discovery statute and to suppress evidence obtained 12 under that statute could not be entertained). 13 Abstention principles generally require federal courts to abstain from exercising 14 jurisdiction over a habeas petition in which the petitioner raises an affirmative defense to 15 a state prosecution unless (1) the state proceedings are being undertaken in bad faith or to 16 harass, where there is no “hope of obtaining a valid conviction,” or (2) “in other 17 extraordinary circumstances where irreparable injury can be shown.” Brown v. Ahern, 18 676 F.3d 899, 903 (9th Cir. 2012) (citation omitted); see also Middlesex Cty. Ethics 19 Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 435-37 (1982). Irreparable injury alone, 20 however, is insufficient to warrant federal intervention unless the irreparable injury is 21 both great and immediate. See Younger, 401 U.S. at 46. 22 In this case, abstention appears appropriate because all the Younger requirements 23 are met. As noted, Petitioner’s state criminal proceedings are ongoing. Petitioner is in 24 pretrial custody on the criminal charges for which he is detained. Second the state’s task 25 of enforcing its laws against socially harmful conduct is “important and necessary,” 26 Younger, 401 U.S. at 51–52, and as such, the state proceedings implicate important state 27 interests. Third, Petitioner has an adequate opportunity to raise his federal habeas claims 28 / / / 1 in his pending state proceedings. Lastly, there is nothing to indicate the circumstances of 2 Petitioner’s case fall within any recognized exception to the Younger doctrine. 3 FAILURE TO ALLEGE A COGNIZABLE CLAIM ON FEDERAL HABEAS 4 Finally, the Court notes that it appears to the Court that a Petition for Writ of 5 Habeas Corpus may not be the proper vehicle for all the claims Petitioner presents. 6 Petitioner lists various problems he claims he is facing in jail. In addition to allegations 7 related to his criminal proceedings, Petitioner claims also he has been “denied access to 8 the law library” and “denied photocopies” and “denied medical and mental healthcare 9 and treatment.” (Pet., ECF No. 1 at 3–4.) These claims are not cognizable on habeas 10 because they do not challenge the constitutional validity or duration of confinement. See 11 28 U.S.C. § 2254(a); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Heck v. Humphrey, 12 512 U.S. 477, 480-85 (1994). “Section 2254 applies only to collateral attacks on state 13 court judgments.” McGuire v. Blubaum, 376 F. Supp. 284, 285 (D. Ariz. 1974). 14 In no way does Petitioner claim his state court conviction violates the Constitution 15 or laws or treaties of the United States. Rule 4 of the Rules Governing Section 2254 Cases 16 provides for summary dismissal of a habeas petition “[i]f it plainly appears from the face 17 of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in 18 the district court.” Rule 4, 28 U.S.C. foll. § 2254. Here, it is plain from the petition that 19 Petitioner is not presently entitled to federal habeas relief because he has not alleged that 20 the state court violated his federal rights. 21 Challenges to the fact or duration of confinement are brought by petition for a writ 22 of habeas corpus; challenges to conditions of confinement are brought pursuant to the 23 Civil Rights Act, 42 U.S.C. § 1983. See Preiser, 411 U.S. at 488-500. When a state 24 prisoner is challenging the very fact or duration of his physical imprisonment, and the 25 relief he seeks is a determination that he is entitled to immediate release or a speedier 26 release from that imprisonment, his sole federal remedy is a writ of habeas corpus. Id. at 27 500. On the other hand, a § 1983 action is a proper remedy for a state detainee who is 28 making a constitutional challenge to the conditions of his detention, but not to the fact or 1 length of his custody. Id. at 499; McIntosh v. United States Parole Comm’n, 115 F.3d 2 809, 811-12 (10th Cir. 1997). To the extent Petitioner challenges the conditions of his 3 detention, but not the fact or length of his custody,1 he has not stated cognizable habeas 4 claims. 5 CONCLUSION 6 For the reasons discussed above, the Petition is DISMISSED without prejudice. 7 For Petitioner’s convenience, the Clerk of Court shall attach to this Order a blank form 8 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 and a blank 42 U.S.C. 9 § 1983 complaint form. 10 IT IS SO ORDERED. 11 Dated: May 27, 2020 12 Larry Alan Burns, Chief Judge United State District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 Petitioner currently has a 42 U.S.C. § 1983 complaint pending in this Court in 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10081203. Public record. Not legal advice.