Case 8:21-cv-01852-VBF-JC Document 31 Filed 09/30/22 Page 1 of 6 Page ID #:618

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

10 11 DOUGLAS MACKENZIE, ) Case No. 8:21-cv-01852-VBF-JC ) 12 Petitioner, ) ORDER ACCEPTING FINDINGS, ) CONCLUSIONS, AND 13 v. ) RECOMMENDATIONS OF ) UNITED STATES MAGISTRATE 14 ) JUDGE

BRANDON PRICE, )

15 ) ) 16 Respondent. ) _______________________________ ) 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of 19 Habeas Corpus Under 28 U.S.C. § 2241 (“Petition”) and supporting documents, 20 the matters as to which the Court has taken judicial notice at petitioner’s request, 21 the parties’ submissions in connection with respondent’s Motion to Dismiss and 22 Request for Judicial Notice, and all of the records herein, including the May 5, 23 2022 Report and Recommendation of United States Magistrate Judge (“R&R”) 24 and petitioner’s Objections to the R&R. The Court has further made a de novo 25 determination of those portions of the Report and Recommendation to which 26 objection is made. The Court concurs with and accepts the findings, conclusions, 27 and recommendations of the United States Magistrate Judge and overrules the 28 Objections. The Court specifically addresses some of the Objections below. Case 8:21-cv-01852-VBF-JC Document 31 Filed 09/30/22 Page 2of6 Page ID #:619

1 The R&R recommends abstaining under Younger v. Harris, 401 U.S. 37 2 || (1971), and its progeny from considering petitioner’s challenges to proceedings 3 || now pending in the Los Angeles County Superior Court under California’s 4 || Sexually Violent Predators Act (“SVPA”). Younger abstention only applies if 5 || ““‘(1) there is an ongoing state judicial proceeding; (2) the proceeding implicates 6 || important state interests; (3) there is an adequate opportunity in the state 7 || proceedings to raise constitutional challenges; and (4) the requested relief seeks to 8 || enjoin or has the practical effect of enjoining the ongoing state judicial 9 || proceeding.’” Page v. King, 932 F.3d 898, 901-02 (9th Cir. 2019) (quoting 10 || Arevalo v. Hennessy, 882 F.3d 763, 765 (9th Cir. 2018)); Bean v. Matteucci, 986 11 | F.3d 1128, 1133 (9th Cir. 2021). 12 Among other things, petitioner objects that SVPA proceedings do not allow 13 | him the opportunity to raise constitutional challenges because he “is burdened 14 || with an attorney who has evinced a total absence of loyalty towards [p]etitioner 15 || which has contributed to a conflict of interest” as “[s]aid attorney has adamantly 16 || refused to file any pleadings challenging the constitutional claims noted within the 17 || instant habeas petition.” (Objections at 3-5). However, this objection is without 18 || merit. While petitioner expresses dissatisfaction with the attorney representing 19 || him in his SVPA proceedings, when, as here, “vital state interests are involved, a 20 || federal court should abstain ‘unless state law clearly bars the interposition of the 21 || constitutional claims.’” Middlesex Cnty. Ethics Comm’n. v. Garden State Bar 22 || Ass’n, 457 U.S. 423, 432 (1982) (citation omitted; emphasis added). Petitioner 23 || has not shown that to be the case. To the contrary, as the R&R explained, 24 || petitioner’s SVPA proceedings “afford [him] an adequate opportunity to litigate 25 || his federal claims.”' Rhoden v. Mayberg, 361 F. App’x 895, 896 (9th Cir. 2010); 26 | ———_____ 27 'A defendant in SVPA proceedings who is unhappy with his counsel can file a Marsden 28 motion, People v. Marsden, 2 Cal. 3d 118 (1970); see also People v. Hill, 219 Cal. App. 4th 646, (continued...)

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1 || Cruz v. Price, — F. App’x __, 2022 WL 989470, *1 (9th Cir. 2022); Smith v. 2 || Plummer, 458 F. App’x 642, 643 (9th Cir. 2011); Castillo v. Baca, 397 F. App’x 3 || 324, 324 (9th Cir. 2010). 4 Petitioner also objects to the R&R’s conclusion that he does not fall within 5 || the “extraordinary circumstances” exception to Younger abstention. (Objections 6 || at S-9). He argues that he falls within the “extraordinary circumstances” exception 7 || recognized in Page because he is challenging the trial court’s probable cause 8 || finding and seeking a new probable cause determination. (Objections at 5-9). 9 In Page, the Ninth Circuit noted that “Younger does not ‘require[] a district 10 || court to abstain from hearing a petition for a writ of habeas corpus challenging the 11 | conditions of pretrial detention in state court’ where (1) the procedure challenged 12 || in the petition is distinct from the underlying criminal prosecution and the 13 || challenge would not interfere with the prosecution, or (2) full vindication of the 14 |) petitioner’s pretrial rights requires intervention before trial.” Page, 932 F.3d at 15 | 903 (quoting Arevalo, 882 F.3d at 765). The Ninth Circuit found that the claim 16 || Page was raising — “that the state is violating his due process right not to be 17 || detained pretrial based on a stale and scientifically invalid probable cause 18 || determination” — “fits squarely within the irreparable harm exception’” because 19 || “a post-trial adjudication of his claim will not fully vindicate his right to a current 20 || and proper pretrial probable cause determination” and the claim “is not ‘directed at 21 || the state prosecution[] as such, but only at the legality of pretrial detention without 22 23 '(...continued) 94 || 652 (2013) (A “defendant in an SVPA proceeding has a due process right to a Marsden hearing.”), which “is the California procedural mechanism through which a... defendant ‘seeks 25 to discharge his appointed counsel and substitute another attorney’ on the ground that he has 6 received inadequate representation.” Mahrt v. Beard, 849 F.3d 1164, 1168 (9th Cir. 2017) (citations omitted). Petitioner is well aware of this since not only has he attempted to replace his 27 || counsel multiple times (see Lodged Doc. 1 at 4, 6-8, 15-18, 24-25, 30-31, 37-39, 83-86), but he 28 also has a Marsden motion pending in the Superior Court. (See https://visionpublic.occourts.org (last visited June 7, 2022)).

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1 || a [constitutionally-adequate] judicial hearing, an issue that could not be raised in 2 || defense of the criminal prosecution, and thus’ .. . [would] ‘not prejudice the 3 || conduct of the trial on the merits.’” Id. at 904 (citations omitted). 4 The R&R found that petitioner does not fall within the “extraordinary 5 || circumstances” exception recognized in Page because he is not challenging “a 6 || procedure that is distinct from his underlying SVPA trial and would not interfere 7 || with the upcoming trial”; instead, he is attacking the SVPA’s constitutionality and 8 || seeking “‘a court determination that he is not [a sexually violent predator (“SVP”’)] 9 || — the exact issue to be determined in his upcoming trial — as well as an order 10 || requiring his ‘immediate release from detention.’”” (R&R at 15-16 (citations 11 || omitted)). The record supports this assessment as, among other things, the 12 || Petition alleges the SVPA violates petitioner’s constitutional rights and it does not 13 || request a new probable cause hearing, but rather seeks recognition that petitioner 14 | is “not currently an SVP at all” and requests petitioner’s “immediate release from 15 || detention.” (See Petition at 7, 17, 19-28 (emphasis in original)). But even if this 16 || was not the case, and petitioner had, as he argues, raised a claim that “fits squarely 17 || within the dictates outlined” in Page (Objections at 8), it would not benefit him 18 || since, as the R&R recognizes, “in a subsequent appeal the Ninth Circuit 19 || determined that such a claim raised only state law issues not cognizable on federal 20 || habeas corpus.” (R&R at 16 n.9); see also Page v. King, — F. App’x __, 2021 21 | WL 4690953, *2 (9th Cir. 2021) (“Page argues that the probable cause finding is 22 || based on stale evaluations because they no longer meet the SVPA’s requirement of 23 || current diagnoses and two concurring expert opinions. However, this issue 24 || presents a state law violation that is not grounds for federal habeas relief.” 25 || (footnote omitted)); see also Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (Federal 26 || habeas corpus relief “does not lie for errors of state law.’’); Pulley v. Harris, 465 27 || U.S. 37, 41 (1984) (“A federal court may not issue the writ [of habeas corpus] on 28 || the basis of a perceived error of state law.”).

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1 Petitioner’s remaining Objections are without merit and do not warrant 2 further discussion. 3 Finally, petitioner has filed a fourth request for judicial notice, which asks 4 the Court to take judicial notice of a habeas corpus petition he filed in the 5 California Supreme Court on December 13, 2021, and the California Supreme 6 Court’s order denying that petition on May 11, 2022. (Dkt. No. 30). Petitioner’s 7 request is granted.2 See Rosales-Martinez v. Palmer, 753 F.3d 890, 894 (9th Cir. 8 2014) (“It is well established that we may take judicial notice of judicial 9 proceedings in other courts.”); Harris v. Cnty. of Orange, 682 F.3d 1126, 1132 10 (9th Cir. 2012) (“We may take judicial notice of undisputed matters of public 11 record, including documents on file in federal or state courts.” (citations omitted)). 12 IT IS HEREBY ORDERED that (1) petitioner’s Requests for Judicial 13 Notice are granted; (2) respondent’s Request for Judicial Notice and Motion 14 to Dismiss are granted; (3) the Court takes judicial notice of the prior cases 15 petitioner has filed in this Court and the status of his ongoing state court 16 proceedings; (4) the Petition and this action are dismissed without prejudice; and 17 (5) Judgment shall be entered accordingly. 18 /// 19 /// 20 /// 21 /// 22 /// 23 24 2The California Supreme Court denied the petition “without prejudice to raising these claims in the appropriate manner.” (Dkt. No. 30, Att. 2 (citing In re Barnett, 31 Cal. 4th 466, 471 25 (2003) (“As a general rule, parties who are represented in court by counsel of record are required 26 to proceed in court through their counsel.”))). The California Supreme Court’s order does not moot the need for Younger abstention, but does raise the question of whether petitioner has 27 properly exhausted any of the claims set forth in his Petition. However, given the Court’s rejection of petitioner’s objections to the R&R and its dismissal of this action without prejudice, 28 the Court need not further explore that issue here. 5 Case 8:21-cv-01852-VBF-JC Document 31 Filed 09/30/22 Page 6 of 6 Page ID #:623

1 IT IS FURTHER ORDERED that the Clerk serve copies of this Order and 2 the Judgment herein on petitioner and counsel for respondent. 3 LET JUDGMENT BE ENTERED ACCORDINGLY. 4 5 Dated: September 30, 2022 /s/ Valerie Baker Fairbank 6 ________________________________ 7 HON. VALERIE BAKER FAIRBANK

SENIOR UNITED STATES DISTRICT JUDGE

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