1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN EDWARD FINDLEY, No. 2:21-cv-1117 AC P 12 Petitioner, 13 v. ORDER AND FINDINGS &

RECOMMENDATIONS

14 COUNTY OF EL DORADO, et al., 15 Respondents. 16 17 Petitioner, a pretrial detainee proceeding pro se, has filed a petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2241. 19 I. Petition 20 The Rules Governing Section 2254 Cases in the United States District Courts (Habeas 21 Rules) are appropriately applied to proceedings undertaken pursuant to 28 U.S.C. § 2241. Habeas 22 Rule 1(b). Rule 4 of the Habeas Rules requires the court to summarily dismiss a habeas petition 23 “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled 24 to relief in the district court.” “[A] petition for habeas corpus should not be dismissed without 25 leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave 26 granted.” Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971) (citations omitted). 27 Petitioner challenges his confinement on the grounds that his counsel is ineffective 28 because it has been six months since his arrest without any discovery or investigation, counsel 1 talked petitioner into waiving time, and he failed to obtain petitioner’s release to visit his mother 2 in the hospital or attend her funeral. ECF No. 1 at 3-4. 3 Pursuant to 28 U.S.C. § 2241, the courts have jurisdiction to consider a habeas petition 4 brought by a pretrial detainee. McNeely v. Blanas, 336 F.3d 822, 824 n.1 (9th Cir. 2003) 5 (citations omitted). Under § 2241(c)(3), a pretrial detainee may seek a writ of habeas corpus 6 when “[h]e is in custody in violation of the Constitution or laws or treaties of the United States.” 7 However, under Younger v. Harris, 401 U.S. 37 (1971), federal courts may not interfere with a 8 pending state criminal case. “Younger abstention is a jurisprudential doctrine rooted in 9 overlapping principles of equity, comity, and federalism.” San Jose Silicon Valley Chamber of 10 Commerce Political Action Comm. v. City of San Jose, 546 F.3d 1087, 1091-92 (9th Cir. 2008) 11 (citations and footnote omitted). Younger abstention is required 12 if four requirements are met: (1) a state-initiated proceeding is ongoing; (2) the proceeding implicates important state interests; (3) 13 the federal plaintiff is not barred from litigating federal constitutional issues in the state proceeding; and (4) the federal court action would 14 enjoin the proceeding or have the practical effect of doing so, i.e., would interfere with the state proceeding in a way that Younger 15 disapproves. 16 Id. at 1092 (citations omitted). 17 In the instant case, the court finds that all four requirements for exercising Younger 18 abstention are met. The state-initiated criminal proceeding against plaintiff appears to still be 19 ongoing; the proceeding implicates important state interests; to the extent plaintiff may have 20 federal constitutional challenges, he is not barred from raising them in the state criminal 21 proceeding; and this court’s failure to abstain would directly interfere with the state proceeding. 22 These factors demonstrate that the court should abstain from considering petitioner’s claims and 23 dismiss them. 24 II. Certificate of Appealability 25 Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must 26 issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A 27 certificate of appealability may issue “only if the applicant has made a substantial showing of the 28 denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For the reasons set forth in these 1 | findings and recommendations, a substantial showing of the denial of a constitutional right has 2 || not been made in this case. Therefore, no certificate of appealability should issue. 3 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall randomly 4 || assign a United States District Judge to this action. 5 IT IS FURTHER RECOMMENDED that: 6 1. Petitioner’s application for a writ of habeas corpus be dismissed without prejudice. 7 2. This court decline to issue the certificate of appealability referenced in 28 U.S.C. 8 | § 2253. 9 These findings and recommendations are submitted to the United States District Judge 10 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1).. Within twenty-one days 11 | after being served with these findings and recommendations, petitioner may file written 12 || objections with the court and serve a copy on all parties. Such a document should be captioned 13 || “Objections to Magistrate Judge’s Findings and Recommendations.” Petitioner is advised that 14 | failure to file objections within the specified time may waive the right to appeal the District 15 || Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 16 | DATED: June 24, 2021 ~ 17 Lhar—e_

ALLISON CLAIRE

18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28