1 2 3 4 5 6 7 8

UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

10 11 DERWIN JULES JACKSON, Case No. 5:24-cv-00754-WDK-PD 12 Petitioner, ORDER TO SHOW CAUSE RE: 13

DISMISSAL OF PETITION

v. 14

T.L. CAMPBELL,

15 16 Respondent. 17 18

19 On April 10, 2024, Petitioner Derwin Jules Jackson, proceeding pro se, 20 filed a Petition for Writ of Habeas Corpus by a Person in State Custody 21 pursuant to 28 U.S.C. § 2254. The Court issues this Order to Show Cause 22 directed to Petitioner because the face of the Petition suggests that it is 23 subject to dismissal pursuant to Younger v. Harris, 401 U.S. 37 (1971), and 24 fails to allege any claim that is cognizable on federal habeas review. 25

I. Procedural History and Petitioner’s Contentions

26 In July 1997, a San Bernardino County Superior Court jury convicted 27 Petitioner of two counts of second-degree murder and found that a principal 28 1 was armed with a firearm. [See Dkt. No. 1 at 2]; People v. Jackson, No. 2 E072766, 2020 WL 4186391, at *1 (Cal. Ct. App. July 21, 2020) (“Jackson I”). 3 Petitioner waived his right to a jury trial on the allegation that he had 4 suffered a prior serious or violent felony strike conviction, and the trial court 5 found that the allegation was true. Jackson I, 2020 WL 4186391, at *1. In 6 1998, he was sentenced to 15 years to life on each murder count, doubled to 30 7 years to life due to the prior conviction, plus one year for each firearm 8 enhancement. See id. He was also ordered to pay $10,000.00 in restitution. 9 See id. 10 Petitioner appealed, arguing among other things that his prior 11 conviction did not qualify as a violent or serious felony, and on June 23, 1999, 12 the court of appeal affirmed the judgment in all material aspects. See People 13 v. Jackson, No. E073934, 2020 WL 5836035, at *3 (Cal. Ct. App. Oct. 1, 2020) 14 (“Jackson II”); see also Cal. App. Cts. Case Info. http:// 15 appellatecases.courtinfo.ca.gov/ (search for Case No. E021188 in 4th App. 16 Dist., Div. 2) (last visited on Nov. 18, 2024). The California Supreme Court 17 denied review on October 20, 1999. See Cal. App. Cts. Case Info. 18 http://appellatecases.courtinfo.ca.gov/ (search for Case No. S080955 in 19 supreme court).1 20 In August 2018, Petitioner filed a habeas petition in the superior court, 21 again challenging the prior-conviction enhancement. Jackson I, 2020 WL 22 4186391, at *1. On March 15, 2019, the superior court granted relief and 23 ordered that he be resentenced. See id. After being resentenced, Petitioner 24 appealed, and on July 21, 2020, the court of appeal affirmed the judgment but 25

26 1 In 2002 and 2012, Petitioner filed unsuccessful habeas petitions in the California Supreme Court and California Court of Appeal, respectively. See Cal. App. Cts. 27 Case Info. http://appellatecases.courtinfo.ca.gov/ (search for “Derwin” and “Jules” 28 and “Jackson”) (last visited on Nov. 18, 2024). Neither of those petitions has any 1 remanded for resentencing to allow the trial court to exercise its discretion 2 whether to strike the firearm enhancements and to allow Petitioner to request 3 a hearing to determine his ability to pay the restitution fine. See Jackson I, 4 2020 WL 4186391, at *5. 5 Meanwhile, the State appealed the superior court’s order granting 6 Petitioner’s habeas petition, and on October 13, 2020, the court of appeal 7 affirmed. See In re Jackson, E072464, 2020 WL 6052571, at *14 (Cal. Ct. App. 8 Oct. 13, 2020) (“Jackson III”). The State then filed a petition for review in the 9 California Supreme Court, and December 23, 2020, the California Supreme 10 Court granted review and deferred action pending its decision in In re Milton, 11 13 Cal. 5th 893 (2022). See In re Jackson, E072464, 2023 WL 2583126, at *1 12 (Cal. Ct. App. Mar. 21, 2023) (“Jackson IV”). On November 9, 2022, the 13 California Supreme Court transferred the matter back to the court of appeal, 14 ordering it to vacate its original opinion and reconsider Petitioner’s appeal in 15 light of Milton. See id. at *5. On March 21, 2023, the court of appeal vacated 16 its opinion, “reconsidered [Petitioner’s] appeal in light of Milton,” and 17 reversed the superior court’s order granting his habeas petition. Id. at *2, 18 *10. 19 On April 7, 2023, Petitioner filed a pro se habeas petition in the 20 California Supreme Court, which summarily denied it on July 19. See Cal. 21 App. Cts. Case Info. http://appellatecases.courtinfo.ca.gov/ (search for Case 22 No. S279406 in supreme court) (last visited on Nov. 18, 2024). On April 20, 23 2023, he filed a counseled petition for review in the California Supreme Court, 24 which summarily denied it on May 31, with one justice dissenting. See id. 25 (search for Case No. S279611 in supreme court). 26

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28 1 On January 12, 2024, the trial court entered judgment concerning 2 Petitioner’s 1997 conviction and 1998 sentence.2 See id. (search for Case No. 3 E083150 in 4th App. Dist., Div. 2). On January 29, 2024, Petitioner appealed. 4 See id. That appeal is pending. See id. 5 On February 5, 2024, Petitioner constructively filed the instant Petition. 6 Liberally construed, see Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 2008) 7 (district courts are obligated to liberally construe pro se litigant filings), the 8 Petition states the following three grounds for relief: 9 1. The trial court misapplied California law by imposing a prior- 10 serious-or-violent-felony strike enhancement to Petitioner’s sentence without 11 explicitly finding that the prior conviction qualified as a strike, and an 12 existing conflict in California law on this point must be resolved. 13 2. The California Court of Appeal erred by refusing to retroactively 14 apply a California Supreme Court opinion prohibiting trial courts from relying 15 on preliminary-hearing testimony from a defendant’s prior criminal case to 16 determine if the resulting prior conviction qualifies a serious or violent felony. 17 3. The court of appeal erred on habeas review in finding that two 18 state-court procedural doctrines precluded Petitioner from relitigating a 19 challenge to his alleged “unauthorized” sentence that he had already raised on 20 direct appeal. 21 [Dkt. No. 1 at 13-14, 20-22.] 22 23 24 25 2 The Court is unable to determine whether the trial court’s 2024 judgment altered 26 Petitioner’s sentence in any way, but notes that Petitioner filed a direct appeal of that judgment and the court of appeal appointed counsel, who recently filed an 27 opening brief in that action. See Cal. App. Cts. Case Info. http:// 28 appellatecases.courtinfo.ca.gov/ (search for Case No. E083150 in 4th App. Dist., Div. 1 II. Discussion A. Duty to Screen 2 Rule 4 of the Rules Governing § 2254 Cases requires the Court to 3 conduct a preliminary review of the Petition. Pursuant to Rule 4, the Court 4 must summarily dismiss a petition “[i]f it plainly appears from the face of the 5 petition . . . that the petitioner is not entitled to relief in the district court.” 6 Rule 4 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 7 F.2d 490 (9th Cir. 1990). “If a petition is ‘facially defective,’ ‘a dismissal may 8 be called for on procedural grounds, which may avoid burdening the 9 respondent with the necessity of filing an answer on the substantive merits of 10 the petition.’” Neiss v. Bludworth, 114 F.4th 1041, (9th Cir. 2024) (citations 11 omitted). Rule 4 also permits courts to dismiss claims “that are clearly not 12 cognizable.” Id. at 1045 (citations omitted). In determining whether 13 dismissal is warranted under Rule 4, “the standard is not whether the claim 14 will ultimately – or even likely – succeed or fail, but rather, whether the 15 petition states a cognizable, non-frivolous claim.” Id. at 1046. 16 As explained below, a review of the Petition suggests that it is subject to 17 dismissal for at least two reasons. 18 B. Younger Abstention 19 As a general proposition, a federal court will not intervene in a pending 20 state criminal proceeding absent extraordinary circumstances involving great 21 and immediate danger of irreparable harm. See Younger, 401 U.S. at 45-46; 22 see also Fort Belknap Indian Cmty. v. Mazurek, 43 F.3d 428, 431 (9th Cir. 23 1994). “[O]nly in the most unusual circumstances is a defendant entitled to 24 have federal interposition by way of injunction or habeas corpus until after 25 the jury comes in, judgment has been appealed from and the case concluded in 26 the state courts.” Drury v. Cox, 457 F.2d 764, 764-65 (9th Cir. 1972) (per 27 curiam). 28 1 proceedings (1) are ongoing, (2) implicate important state interests, and (3) 2 provide an adequate opportunity to litigate the petitioner’s federal 3 constitutional claims. See Middlesex Cnty. Ethics Comm. v. Garden State Bar 4 Ass’n, 457 U.S. 423, 432 (1982). The Ninth Circuit has articulated a fourth 5 criterion: that the requested relief would “enjoin” the state proceeding “or 6 ha[ve] ‘the practical effect’” of doing so. Arevalo v. Hennessy, 882 F.3d 763, 7 765 (9th Cir. 2018) (citation omitted). 8 Even when the Younger abstention criteria are satisfied, a federal court 9 may intervene when a petitioner shows “bad faith, harassment, or some other 10 extraordinary circumstance that would make abstention inappropriate.” 11 Middlesex, 457 U.S. at 435. “[E]xtraordinary circumstances” are limited to 12 “cases of proven harassment or prosecutions undertaken by state officials in 13 bad faith without hope of obtaining a valid conviction,” or “where irreparable 14 injury can be shown.” Brown v. Ahern, 676 F.3d 899, 903 (9th Cir. 2012) 15 (citation omitted). The circumstances must create a “pressing need for 16 immediate federal equitable relief, not merely in the sense of presenting a 17 highly unusual factual situation.” Kugler v. Helfant, 421 U.S. 117, 125 (1975). 18 Here, all criteria for abstention are satisfied. Petitioner’s direct appeal 19 is ongoing. After the court of appeal reversed the superior court’s order 20 granting habeas relief, the trial court entered judgment on January 12, 2024, 21 and Petitioner filed a direct appeal, which is still pending. There is no reason 22 to believe that the appeal was improperly brought. To the contrary, after 23 Petitioner filed his notice of appeal, the court of appeal appointed counsel, 24 who recently filed an opening brief in that action. See Cal. App. Cts. Case 25 Info. http:// appellatecases.courtinfo.ca.gov/ (search for Case No. E083150 in 26 4th App. Dist., Div. 2) (last visited on Nov. 18, 2024). Accordingly, although 27 Petitioner was originally sentenced in 1998, his direct-appeal process appears 28 1 to still be ongoing. See Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 2 1983) (“When . . . an appeal of a state criminal conviction is pending, a would- 3 be habeas corpus petitioner must await the outcome of his appeal before his 4 state remedies are exhausted.”); see also Henderson v. Johnson, 710 F.3d 872, 5 874 (9th Cir. 2013) (per curiam) (“Sherwood stands for the proposition that a 6 district court may not adjudicate a federal habeas petition while a petitioner’s 7 direct state appeal is pending.” (citation omitted)). 8 The state, moreover, has a well-established strong interest in the 9 prosecution of criminal charges and the defense of its convictions and 10 sentences. See, e.g., Younger, 401 U.S. at 51-52 (finding that state must be 11 permitted to “enforce[ ] . . . laws against socially harmful conduct that the 12 State believes in good faith to be punishable under its laws and the 13 Constitution”). Nothing indicates that Petitioner would not have an adequate 14 opportunity to raise his claims in the state proceedings. And the federal-court 15 relief he seeks could “enjoin” the ongoing state proceedings or have the 16 practical effect of doing so. If he were to succeed in his habeas challenges to 17 his sentence, that would certainly prevent the state court from reconsidering 18 those same challenges or any other challenge to his sentence that he elects to 19 assert in his pending direct appeal, including for example whether the trial 20 court abused its discretion in not striking the prior conviction. 21 Moreover, no exception to Younger applies. Petitioner has not alleged 22 bad faith or harassment by state officials, and nothing in the Petition explains 23 why he is in immediate need of federal equitable relief or points to any 24 circumstance that could be construed as “extraordinary.” Brown, 676 F.3d at 25 902-03 (affirming district court’s dismissal of habeas petition under Younger 26 for failure to identify extraordinary circumstance warranting federal 27 intervention). There is also no possibility that dismissing this action without 28 1 prejudice will result in irreparable injury because, as related above, 2 Petitioner’s direct appeal is still pending. Thus, thus the statute of 3 limitations to file a timely federal habeas petition challenging the trial court’s 4 2024 judgment has not yet begun. See Smith v. Williams, 871 F.3d 684, 687 5 (9th Cir. 2017) (“[T]he judgment from which the AEDPA statute of limitations 6 runs is the one pursuant to which the petitioner is incarcerated.”). 7 C. Failure to State a Cognizable Claim 8 Federal habeas relief is available to state inmates who are “in custody 9 in violation of the Constitution or laws or treaties of the United States.” 28 10 U.S.C. § 2254(a). “Absent a showing of fundamental unfairness, a state 11 court’s misapplication of its own sentencing laws does not justify federal 12 habeas relief.” Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994). “A 13 habeas petitioner must show that an alleged state sentencing error was ‘so 14 arbitrary or capricious as to constitute an independent due process violation.’” 15 Nelson v. Biter, 33 F. Supp. 3d 1173, 1177 (C.D. Cal. 2014) (quoting Richmond 16 v. Lewis, 506 U.S. 40, 50 (1992)). 17 Here the Petition’s claims concern only state law and thus are not 18 cognizable on federal habeas review. The Petition’s first claim is not 19 cognizable because it seeks resolution of a purported conflict in California law 20 and asserts that the state courts misapplied California law. See Waddington 21 v. Sarausad, 555 U.S. 179, 192 n.5 (2009) (“[W]e have repeatedly held that ‘it 22 is not the province of a federal habeas court to reexamine state-court 23 determinations on state-law questions.’” (quoting Estelle v. McGuire, 502 U.S. 24 62, 67-68 (1991)). The Petition’s second claim is not cognizable because it 25 concerns only whether a California Supreme Court case prohibiting trial 26 courts from using preliminary-hearing transcripts to prove the truth of a 27 prior-conviction allegation applies retroactively. See Spivey v. Rocha, 194 28 1 F.3d 971, 977 (9th Cir. 1999) (federal habeas courts do not review “questions 2 of state evidence law”). The Court lacks jurisdiction over the Petition’s third 3 claim because it concerns only whether the court of appeal correctly applied 4 California’s Waltreus and Dixon doctrines.3 See Poland v. Stewart, 169 F.3d 5 573, 584 (9th Cir. 1999) (as amended) (federal courts “lack[] jurisdiction . . . to 6 review state court applications of state procedural rules”); see also Trieu v. 7 Fox, 764 F. App’x 624, 624-25 (9th Cir. 2019) (federal court could not “review 8 the legitimacy” of state court’s application of “procedural bar against 9 successive or piecemeal litigation”). 10 In any event, the court of appeal held that the trial court’s finding that 11 Petitioner sustained a prior serious or violent felony conviction was proper 12 under California law and that California’s “Dixon and Waltreus doctrines . . . 13 prevent[ed] [him] from relitigating the sufficiency of the evidence supporting 14 the prior strike finding on habeas.” See Jackson IV, 2023 WL 2583126, at *8- 15 10. What’s more, Petitioner’s claim concerning the use of preliminary-hearing 16 testimony to prove a prior felony conviction is based on the proposition that 17 the California Supreme Court’s opinion in People v. Gallardo, 4 Cal. 5th 120 18 (2017), applies retroactively. [See Dkt. 1 at 21.] But the California Supreme 19 Court has already held that it does not. See Milton, 13 Cal. 5th 897. Because 20 those holdings reflect the application and interpretation of state law, this 21 Court is bound by them. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per 22 curiam) (“[A] state court’s interpretation of state law . . . binds a federal court 23 sitting in habeas corpus.”). 24 That Petitioner alludes to his right to due process [see Dkt. No. 1 at 39] 25

26 3 In re Waltreus, 62 Cal. 2d 218, 225 (1965); In re Dixon 41 Ca1. 2d 756, 769 (1953)). Dixon prohibits claims on habeas review that could have been raised on direct 27 review but were not, and Waltreus prohibits claims on habeas review that were 28 previously decided on direct review. See Fields v. Calderon, 125 F.3d 757, 762 (9th 1 is insufficient to transform his state-law claims into cognizable federal ones. 2 See Gray v. Netherland, 518 U.S. 152, 163 (1996) (explaining that petitioner 3 may not convert state-law claim into federal one by making general appeal to 4 constitutional guarantee); Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th 5 Cir. 1994) (habeas petitioner’s mere reference to Due Process Clause was 6 insufficient to render his claims viable under 14th Amendment). And putting 7 that aside, he cannot show his 60-years-to-life sentence was arbitrary or 8 fundamentally unfair because he was convicted of two counts of second-degree 9 murder. See Amaya v. Martinez, No. 2:23-cv-00559-WLH-SSC, 2023 WL 10 8261563, at *3 (C.D. Cal. Sept. 6, 2023) (indeterminate sentence for one count 11 of second-degree murder could not serve as basis for due-process violation), 12 accepted by 2023 WL 8257960 (C.D. Cal. Nov. 29, 2023), appeal filed, No. 23- 13 4204 (9th Cir. filed Dec. 15, 2023). 14 As such, it appears that none of the Petition’s claims are cognizable and, 15 thus, the Petition should be dismissed. 16

III. Conclusion

17 For the foregoing reasons, the Court ORDERS Petitioner to 18 show cause by no later than January 3, 2025, as to why (1) the Petition 19 should not be summarily denied without prejudice on the basis that Younger 20 bars this Court from directly interfering with his ongoing state-court criminal 21 proceedings and (2) the Petition should not be dismissed with prejudice 22 because it fails to allege a cognizable claim on federal habeas relief. 23 If Petitioner contends Younger does not preclude this Court’s review or 24 that any of the Petition’s claims are cognizable on federal habeas review, he 25 must allege specific facts to support those contentions and provide any 26 reasonably available supporting documentation, including but limited to the 27 trial court’s January 12, 2024 judgment and the notice of appeal that he filed 28 in the court of appeal on January 30, 2024, as well as his opening brief in that action. Petitioner is admonished that the Court will construe his failure to file a response to this Order by January 3, 2025, asa ° concession on his part that the Petition is barred by Younger and 6 that none of the Petition’s claims are not cognizable. In that event, the Court will recommend either that the Petition be dismissed 8 without prejudice pursuant to Younger or that it be dismissed with prejudice for failure to allege a cognizable claim.

1] IT IS SO ORDERED. 12 13 || DATED: November 21, 2024 14 Pali Mana 15 PATRICIADONAHUE ists 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28

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