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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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9 BENITO JUAREZ YBARRA JR., Case No. 1:25-cv-00212-SAB-HC

10 Petitioner, FINDINGS AND RECOMMENDATION

RECOMMENDING DISMISSAL OF

11 v. PETITION FOR WRIT OF HABEAS

CORPUS

12 SUPERIOR COURT OF KERN,

ORDER DIRECTING CLERK OF COURT

13 Respondent. TO RANDOMLY ASSIGN DISTRICT

JUDGE

14 15 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 16 pursuant to 28 U.S.C. § 2254. 17 I. 18 BACKGROUND 19 Petitioner was convicted in the Kern County Superior Court of criminal threats and 20 assault with a deadly weapon. Petitioner was sentenced to an imprisonment term of six months. 21 (ECF No. 1 at 1.1) On November 18, 2024, Petitioner appealed, and the appeal is currently 22 pending in the California Court of Appeal, Fifth Appellate District. (Id. at 2.) On February 18, 23 2025, Petitioner filed the instant federal petition for writ of habeas corpus. (ECF No. 1.) 24 II. 25 DISCUSSION 26 Rule 4 of the Rules Governing Section 2254 Cases (“Habeas Rules”) requires preliminary 27 review of a habeas petition and allows a district court to dismiss a petition before the respondent 1 is ordered to file a response, if it “plainly appears from the petition and any attached exhibits that 2 the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 3 Cases in the United States District Courts, 28 U.S.C. foll. § 2254. 4 “Younger abstention is a jurisprudential doctrine rooted in overlapping principles of 5 equity, comity, and federalism.” San Jose Silicon Valley Chamber of Commerce Political Action 6 Comm. v. City of San Jose, 546 F.3d 1087, 1091 (9th Cir. 2008). In Younger, the Supreme Court 7 held that when there is a pending state criminal proceeding, federal courts must refrain from 8 enjoining the state prosecution. Younger, 401 U.S. at 41; Sprint Commc’ns, Inc. v. Jacobs, 571 9 U.S. 69, 72 (2013). See also Kowalski v. Tesmer, 543 U.S. 125, 133 (2004) (“The doctrine of 10 Younger v. Harris . . . reinforces our federal scheme by preventing a state criminal defendant 11 from asserting ancillary challenges to ongoing state criminal procedures in federal court.”). 12 “When, as in the present case, an appeal of a state criminal conviction is pending, a 13 would-be habeas corpus petitioner must await the outcome of his appeal before his state 14 remedies are exhausted, even where the issue to be challenged in the writ of habeas corpus has 15 been finally settled in the state courts.” Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983) 16 (emphasis added). The Sherwood court explained that “even if the federal constitutional question 17 raised by the habeas corpus petitioner cannot be resolved in a pending state appeal, that appeal 18 may result in the reversal of the petitioner's conviction on some other ground, thereby mooting 19 the federal question.” Id. (citations omitted). See also Henderson v. Johnson, 710 F.3d 872, 874 20 (9th Cir. 2013) (“Sherwood stands for the proposition that a district court may not adjudicate a 21 federal habeas petition while a petitioner’s direct state appeal is pending.”). “However, even if 22 Younger abstention is appropriate, federal courts do not invoke it if there is a ‘showing of bad 23 faith, harassment, or some other extraordinary circumstance that would make abstention 24 inappropriate.’” Arevalo v. Hennessy, 882 F.3d 763, 765–66 (9th Cir. 2018) (quoting Middlesex 25 Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 435 (1982)). 26 Here, Petitioner’s direct appeal of his criminal conviction is pending in the California 27 Court of Appeal, Fifth Appellate District. (ECF No. 1 at 2.) As Petitioner has failed to 1 | that a petitioner must await the outcome of the state proceedings before commencing his federal 2 | habeas corpus action.” Edelbacher v. Calderon, 160 F.3d 582, 583 (9th Cir. 1998). As Petitioner 3 | has an ongoing criminal appeal in state court, the instant federal habeas petition is premature and 4 | should be dismissed. 5 Il. 6 RECOMMENDATION & ORDER 7 Based on the foregoing, the Court HEREBY RECOMMENDS that the petition for writ of 8 | habeas corpus be DISMISSED without prejudice. 9 Further, the Clerk of Court is DIRECTED to randomly assign this action to a District 10 | Judge. 11 This Findings and Recommendation is submitted to the assigned United States District 12 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 13 | Rules of Practice for the United States District Court, Eastern District of California. Within 14 | THIRTY (30) days after service of the Findings and Recommendation, Petitioner may file 15 | written objections with the Court, limited to fifteen (15) pages in length, including any 16 | exhibits. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 17 | Recommendation.” The assigned United States District Court Judge will then review the 18 | Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that 19 | failure to file objections within the specified time may waive the right to appeal the District 20 | Court’s order. Wilkerson _v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter _v. 21 | Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 73 IT IS SO ORDERED. DAM Le 24 | Dated: _March 19, 2025 _ OO

STANLEY A. BOONE

25 United States Magistrate Judge 26 27 28