Petition for Writ of Certiorari — Michael R. Spengler, Petitioner v. Los Angeles County District Attorney

Supreme Court briefJul 20, 2020

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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

tCyTW

MOLLY C. DWYER, CLERK

L.S. COURXjOF APPEALS

MICHAEL R. SPENGLER,

Petitioner-Appellant,

LOS ANGELES COUNTY DISTRICT

ATTORNEY,

No.

20-55242

D.C. No. 2:20-cv-0035df-DOC-SP

Central District of CaLnomia,

Los Angeles

ORDER

Respondent-Appellee.

Before:

M. SMITH and LEE, Circuit Judges.

The request for a certificate of appealability is denied because appellant has

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not shown that “jurists of reason would find it debatable whether the petition states

a valid claim of the denial of a constitutional right and that jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.”

Slack v. McDaniel 529 U.S. 473, 484 (2000); see also 28 U.S.C. § 2253(c)(2);

Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012); Wilson v. Belleque, 554 F.3d

816, 825-26 (9th Cir. 2009).

Any pending motions are. denied as moot.

DENIED.

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Case 2:20-cv-00356-DOC-SP Document 4 Filed 02/04/20 Page lot 9 PagelD#:338

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

MICHAEL R. SPENGLER,

Case No. CV 20-356-DOC (SP)

Petitioner,

MEMORANDUM AND ORDER

DENYING MOTION TO STAY STATE

PROCEEDINGS AND SUMMARILY

DISMISSING PETITION FOR WRIT OF

HABEAS CORPUS

LOS ANGELES COUNTY

DISTRICT ATTORNEY,

Respondent.

INTRODUCTION

On January 13, 2020, petitioner Michael R. Spengler, an inmate at the Twin

Towers Correctional Facility (“TTCF”), filed a “Pre-Trial” Petition for Writ of

Habeas Corpus (“Petition”). Petitioner is a pretrial detainee, and claims he faces

irreparable injury because he is being retried in violation of the Double Jeopardy

Clause. On the same day, petitioner also filed a Motion to Stay State Proceedings

(“Motion”). In the Motion, petitioner seeks a stay of his state criminal case to

allow this Court time to intervene in the state criminal case.

For the reasons that follow, the Petition will be summarily denied.

Case 2:20-cv-00356-DOC-SP Document 4 Filed 02/04/20 Page 2 of 9 PagelD#:339

Petitioner cannot show that he is being retried in violation of the Double Jeopardy

Clause. Moreover, under the Younger Abstention Doctrine, this Court may not

intervene in petitioner’s pending state criminal case, as petitioner asks the Court to

do. See Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971).

Consequently, petitioner’s Motion to stay his state proceedings will also be denied.

II.

BACKGROUND

This is not petitioner’s first attempt to convince this Court to intervene in his

state criminal proceedings. He has done so in numerous other cases, including by

way of civil rights complaints (case numbers CV 17-450-DOC (SP), CV 17-3078DOC (SP), CV 17-4100-DOC (SP), CV 17-6552-DOC (SP), CV 18-97-RGK

(JPR), CV 17-2078-DOC (SP), CV 17-8665-DOC (SP), CV 17-7510-DOC(SP),

13 CV 18-91 -DOC (SP)), and in two other habeas petitions (case numbers CV 1914 8259-DOC (SP) and CV 17-884-DOC (SP)). The Court has denied all such

15 efforts, repeatedly finding and advising petitioner that, inter alia, the Court must

16 abstain from interfering with the state criminal case under the Younger Abstention

17 Doctrine.

In the instant Petition and Motion, petitioner again seeks this Court’s

assistance with his pending state criminal case. He alleges the prosecution’s re-use

of evidence that was used against petitioner’s co-defendant in a previous trial, in

which the co-defendant was acquitted, violates his right against double jeopardy

since petitioner is being retried as an aider and abettor to the acquitted principal.

Petitioner argues he faces irreparable injury because he is being retried in violation

of the Double Jeopardy Clause, and as such the Younger Abstention Doctrine is

25 inapplicable. He asks this Court to stay his state criminal case and intervene to

26 protect his federal rights.

Case 2:20-cv-00356-DOC-SP Document 4 Filed 02/04/20 Page 3 of 9 PagelD#:340

III.

FACTS OF WHICH THE COURT TAKES JUDICIAL NOTICE

A fact subject to judicial notice is one that is “not subject to reasonable

dispute because it: (1) is generally known within the trial court’s territorial

jurisdiction; or (2) can be accurately and readily determined from sources whose

accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). A court “may

take judicial notice on its own; or must take judicial notice if a party requests it and

the court is supplied with the necessary information.” Fed. R. Evid. 201(c).

Courts “‘may take notice of proceedings in other courts, both within and without

the federal judicial system, if those proceedings have a direct relation to matters at

issue.’” U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971

F.2d 244, 248 (9th Cir. 1992) (citation omitted); see Headwaters Inc. v. U.S. Forest

Serv., 399 F.3d 1047, 1051 n.3 (9th Cir. 2005) (taking judicial notice of the docket

in a related case;

appropriate for judicial notice’”) (citation omitted); Holder v. Holder, 305 F.3d

854, 866 (9th Cir. 2002) (taking judicial notice of opinion and briefs filed in

another proceeding).

[materials from a proceeding in another tribunal are

The Court here takes judicial notice of the records from the state criminal

proceedings that the respondent submitted in case number CV 19-8259-DOC (SP),

consisting of Los Angeles County Superior Court records, specifically, docket

records, minute orders, complaint, information, and trial transcript from case

numbers KA105957 and BA451330. See case no. CV 19-8259, docket no. 12

(“Response”), Exs. 1-6. These records reflect the following facts, of which the

Court also and specifically takes judicial notice.

Petitioner was charged in an information filed on December 17, 2014 in the

Los Angeles County Superior Court in case number KA105957 with murder in

violation of California Penal Code § 187(a). Response, Ex. 1 at 10. At a

Case 2:20-cv-00356-DOC-SP Document 4 Filed 02/04/20 Page 4 of 9 PagelD#:341

preliminary hearing held two weeks prior to the information’s filing, petitioner was

held to answer in that case for the murder of Michael Meza. Id. at 7-8. On

October 31, 2016, a jury found petitioner not guilty of the crime of first degree

murder of Michael Meza, but the jury was unable to reach a verdict on the lesser

included offense of second degree murder. Id, Ex. 1 at 41; Ex. 3 at 98-101. The

court declared a mistrial on the second degree murder charge against petitioner.

Id., Ex. 1 at 41; Ex. 3 at 101. The jury acquitted petitioner’s co-defendant,

Fernando Gonzalez, in the same case of both first and second degree murder. Id.,

Ex. 2 at 91; Ex. 3 at 95. On December 2, 2016, the prosecution dismissed case

number KA105957 without prejudice over petitioner’s objection. Id., Ex. 1 at 43.

Meanwhile, petitioner had been charged in case number BA451330 in the

Los Angeles County Superior Court with the murder of Marcus Nieto in violation

of California Penal Code § 187(a). See id., Ex. 5 at 113; see also id., Ex. 4 at 108.

That complaint was amended on November 18, 2016 to also charge petitioner with

Meza’s murder. Id., Ex. 4 at 108; Ex. 5 at 114. Petitioner was held to answer on

16 both charges at a preliminary hearing held on December 20, 2017. Id., Ex. 5 at

129-30. In the two-count information ultimately filed on January 3, 2018 in case

number BA451330, petitioner was charged in count one with the February 16,

2013 murder of Marcus Nieto, and in count two with the January 9, 2013 murder

of Michael Meza. Id., Ex. 5 at 132; Ex. 6 at 158-60. That case remains pending

and was set for jury trial on January 13, 2020. Id., Ex. 5 at 156.

According to the Los Angeles County Superior Court’s online criminal case

records of which this Court also takes judicial notice, petitioner’s trial in case

number BA451330 is now set for March 23, 2020. See

www.lacourt.org/criminalcasesummary.

Case 2:20-cv-00356-DOC-SP Document 4 Filed 02/04/20 Page 5 of 9 Page ID #:342

IV.

DISCUSSION

Rule 4 of the Rules Governing Section 2254 Cases authorizes the Court to

4 summarily dismiss a habeas petition “[i]f it plainly appears from the petition and

5 any exhibits annexed to it that the petitioner is not entitled to relief in the district

6 court.” Rule 4 also authorizes dismissals on procedural grounds. See 28 U.S.C.

7 foil. § 2254, Rule 4 Advisory Committee Note (1976); White v. Lewis, 874 F.2d

8 599, 602 (9th Cir. 1989). Here, the Petition must be dismissed because, as

9 discussed below, it does not raise a colorable claim for habeas relief, and because it

10 asks this Court to intervene in a pending state criminal case in contravention of the

11 Younger Abstention Doctrine. For the same reasons, the Motion to stay the state

12 proceedings will also be denied.

The Younger Abstention Doctrine prohibits federal courts from staying or

enjoining pending state criminal court proceedings or “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.” Brown v. Ahern, 676 F.3d 899, 901

(9th Cir. 2012) (internal quotation marks omitted); see Younger, 401 U.S. 37.

Younger abstention is appropriate when: (1) the state court proceedings are

ongoing; (2) the proceedings implicate important state interests; and (3) the state

proceedings provide an adequate opportunity to raise the constitutional claims.

Middlesex County Ethics Comm. v. Garden State Bar Ass ’n, 457 U.S. 423, 432,

23 102 S. Ct. 2515, 73 L. Ed. 2d 116 (1982); Baffert v. Cal. Horse RacingBd., 332

24 F.3d 613, 617 (9th Cir. 2003).

The first two Middlesex elements for the Younger Abstention Doctrine to be

26 invoked are plainly present here. There is an ongoing state proceeding, i.e., the

27 criminal case against petitioner. And the criminal proceeding implicates important

Case 2:20-cv-00356-DOC-SP Document 4 Filed 02/04/20 Page 6 of 9 PagelD#:343

state interests because it involves an alleged violation of state criminal law that is

being adjudicated in state court. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 13,

107 S. Ct. 1519, 95 L. Ed. 2d 1 (1987) (enforcement of state court judgments and

orders implicates important state interests); see also People of State of Cal. v.

Mesa, 813 F.2d 960, 966 (9th Cir. 1987) (“A [state’s] ability to protect its citizens

from violence and other breaches of the peace through enforcement of criminal

laws is the centermost pillar of sovereignty.”).

Petitioner’s arguments and assertions in the Petition implicitly challenge the

third Middlesex element, in that he maintains he faces irreparable injury because

his federal civil rights are being violated in the prosecution of him. Petitioner

claims he has no forum to present his claims, but that plainly is not the case. For

example, the double jeopardy violation he alleges may be challenged before and

during the state criminal trial, and in any appeal he might bring if he is convicted.

It is thus apparent that, contrary to petitioner’s argument, the state court criminal

proceedings have provided and will provide an adequate opportunity for petitioner

to litigate his constitutional claim. And if petitioner is convicted, he may raise the

claim on appeal. “The ‘adequate opportunity’ prong of Younger . . . requires only

the absence of ‘procedural bars’ to raising a federal claim in the state proceedings.”.

Commc’ns Telesystems Int7 v. Cal. Pub. Util. Comm’n, 196 F.3d 1011, 1020 (9th

Cir. 1999). Petitioner here faces no such procedural bars.

Petitioner argues, however, that he faces irreparable injury due to being

retried in violation of the Double Jeopardy Clause, and as such the Younger

Abstention Doctrine is inapplicable. See Mannes v. Gillespie, 967 F.2d 1310, 1312

(9th Cir. 1992) (“A claim that a state prosecution will violate the Double Jeopardy

Clause presents an exception to the general rule of Younger . . . .”); Auvaa v. City

of Taylorsville, 506 F. Supp. 2d 903, 915 (D. Utah 2007) (“‘Younger abstention is

unwarranted where a criminal accused presents a colorable claim that a

Case 2:20-cv-00356-DOC-SP Document 4 Filed 02/04/20 Page 7 of 9 Page ID #:344

1 forthcoming second state trial will constitute a violation of her double jeopardy

2 rights’”) (quoting Walckv. Edmondson, 472 F.3d 1227, 1234 (10th Cir. 2007)).

3 “Because full vindication of the right [against double jeopardy] necessarily

4 requires intervention before trial, federal courts will entertain pretrial habeas

petitions that raise a colorable claim of double jeopardy.” Mannes, 967 F.2d at

alleged to have aided has been acquitted. However, “[n]othing in the Double

1312 (citations omitted).

But petitioner here does not raise a colorable claim of double jeopardy.

Petitioner does not appear to be claiming that he is being retried on a claim for

which he was acquitted, and as set forth above, he is not. Instead, he is arguing

that he cannot be tried under an aiding and abetting theory where the principal he is

Jeopardy Clause or the Due Process Clause forecloses putting petitioner on trial as

an aider and abettor simply because another jury has determined that his principal

was not guilty of the offenses charged.” Standefer v. U.S., 447 U.S. 10, 22 n.16,

15 100 S. Ct. 1999, 64 L. Ed. 2d 689 (1980). Thus, petitioner fails to raise a colorable

16 claim of double jeopardy since he may be tried as an aider and abettor even though

17 the named principal he was alleged to have aided was acquitted of the charged

18 offense.

Moreover, the state court records plainly reflect that the jury in petitioner’s

20 first trial was unable to reach a verdict on the lesser included offense of second

21 degree murder, and a mistrial on that charge was declared. “It is well settled that

22 retrial of an accused after a mistrial because the jury is unable to agree is not a

23 denial of the constitutional right against double jeopardy.” Forsberg v. U.S., 351

24 F.2d 242, 244 (9th Cir. 1965) (citing Downum v. U.S., 372 U.S. 734, 735, 83 S. Ct.

1033, 10 L. Ed. 2d 100 (1963)). In Forsberg, as here, the jury deadlocked on the

26 lesser offense and acquitted on the greater offense, and the court found double

27 jeopardy was not implicated by retrial on the lesser offense. Id. at 248; accord

Case 2:20-cv-00356-DOC-SP Document 4 Filed 02/04/20 Page 8 of 9 Page ID #:345

1 U.S. v. Jose, 425 F.3d 1237, 1243 (9th Cir. 2005) (retrial on one offense following

2 acquittal on related offense “does not violate the Double Jeopardy Clause

3 notwithstanding that jeopardy has terminated on, what is for double jeopardy

4 purposes, the ‘same’ offense - its greater or lesser included concomitant”).

For this Court to stay the pending state criminal case, or even to allow this

6 case to proceed, would amount to interfering with the investigation and trial of

petitioner’s state criminal case. There are no “extraordinary circumstances”

indicate he is being prosecuted without reasonable hope of conviction. Indeed, a

present here that would warrant federal intervention. The Ninth Circuit found

under Perez v. Ledesma, 401 U.S. 82, 91 S. Ct. 674, 27 L. Ed. 2d 701 (1971), the

Supreme Court has “limited the category of ‘extraordinary circumstances’ to

encompass only ‘cases of proven harassment or prosecutions undertaken by state

officials in bad faith without hope of obtaining a valid conviction,’ or where

‘irreparable injury can be shown.’” Brown, 676 F.3d at 901 (citing Carden v. State

ofMontana, 626 F.2d 82, 84 (9th Cir. 1980)); see Juidice v. Vail, 430 U.S. 327,

338, 97 S. Ct. 1211, 51 L. Ed. 2d 376 (1977). Petitioner’s allegations do not

jury hung on a charge against him, and he will be retried on that and another

charge. Nor, as discussed above, does petitioner allege he faces irreparable injury

“other than that incidental to every criminal proceeding brought lawfully and in

good faith.” Younger, 401 U.S. 47 (internal quotation marks omitted) (quoting

Douglas v. City ofJeannette, 319 U.S. 157, 164, 63 S. Ct. 877, 87 L. Ed. 1324

22 (1943)). Petitioner’s arguments do not demonstrate extraordinary circumstances

23 that warrant this Court’s intervention in the state court proceedings.

In sum, petitioner cannot show that he is being retried in violation of the

25 Double Jeopardy Clause, which is the sole claim raised in the Petition. Petitioner

26 also has not shown that extraordinary circumstances warrant the Court’s

27 intervention in his pending state criminal case.

Case 2:20-cv-00356-DOC-SP Document 4 Filed 02/04/20 Page 9 of 9 Page ID #:346

CONCLUSION

IT IS THEREFORE ORDERED that: (1) petitioner’s Motion to Stay State

Proceedings (docket no. 2) is DENIED; and (2) Judgment be entered summarily

denying the Petition and this action with prejudice.

DATED: February 4, 2020

//fat'd & /fa&u

HONORABLE DAVID O. CARTER

UNITED STATES DISTRICT JUDGE

Presented by:

SHERI PYM

15 UNITED STATES MAGISTRATE JUDGE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

JUN 11 2020

MOLLY C. DWYER, CLERK

U S. COURT OF APPEALS

MICHAEL R. SPENGLER,

Petiti oner-Appel 1 ant,

LOS ANGELES COUNTY DISTRICT

ATTORNEY,

No.

20-55242

D.C. No. 2:20-cv-00356-DOC-SP

Central District of California,

Los Angeles

ORDER

Respondent-Appel 1 ee.

Before:

TROTT and N.R. SMITH, Circuit Judges.

Appellant’s motion for reconsideration en banc (Docket Entry No. 11) is

denied on behalf of the court. See 9th Cir. R. 27-10; 9th Cir. Gen. Ord. 6.11.

No further filings will be entertained in this closed case.

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