1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA KAHN YAGO, No. 2:23-cv-0734 AC P 12 Petitioner, 13 v. ORDER AND FINDINGS AND

RECOMMENDATIONS

14 SACRAMENTO SUPERIOR COURT, 15 Respondent. 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, together with an application to proceed in forma pauperis. 19 I. Application to Proceed In Forma Pauperis 20 Examination of the in forma pauperis application reveals that petitioner is unable to afford 21 the costs of suit. ECF No. 2. Accordingly, the application to proceed in forma pauperis will be 22 granted. See 28 U.S.C. § 1915(a). 23 II. Petition 24 The Rules Governing Section 2254 Cases in the United States District Courts (Habeas 25 Rules) are appropriately applied to proceedings undertaken pursuant to 28 U.S.C. § 2241. Habeas 26 Rule 1(b). Rule 4 of the Habeas Rules requires the court to summarily dismiss a habeas petition 27 “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled 28 to relief in the district court.” “[A] petition for habeas corpus should not be dismissed without 1 leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave 2 granted.” Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971) (per curiam) (citations omitted). 3 Petitioner alleges he has been and continues to be denied a bail hearing and bail setting in 4 violation of his Eighth and Fourteenth Amendment rights, and that his counsel was ineffective in 5 addressing the matter. ECF No. 1 at 3, 7. He seeks an order from this court directing the 6 Sacramento Superior Court to commence a bail hearing and to allow him to post bail as he poses 7 no danger to the public or to himself. Id. at 8. 8 Pursuant to 28 U.S.C. § 2241, the courts have jurisdiction to consider a habeas petition 9 brought by a pretrial detainee. McNeely v. Blanas, 336 F.3d 822, 824 n.1 (9th Cir. 2003) 10 (citations omitted). Under § 2241(c)(3), a pretrial detainee may seek a writ of habeas corpus 11 where “[h]e is in custody in violation of the Constitution or laws or treaties of the United States.” 12 Although Younger v. Harris, 401 U.S. 37, 45 (1971), provides that federal courts may not 13 interfere with a pending state criminal case absent extraordinary circumstances, abstaining under 14 Younger is improper if the issue raised is “distinct from the underlying criminal prosecution and 15 would not interfere with it,” such as a challenge to bail proceedings, Arevalo v. Hennessy, 882 16 F.3d 763, 766 (9th Cir. 2018) (emphasis added). However, even if the court need not abstain due 17 to the ongoing criminal case, the petition at bar should still be dismissed because the claims have 18 not been exhausted. 19 Section 2241 “does not specifically require petitioners to exhaust direct appeals before 20 filing petitions for habeas corpus. However, [the Ninth Circuit] require[s], as a prudential matter, 21 that habeas petitioners exhaust available judicial and administrative remedies before seeking 22 relief under § 2241.” Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001) (citations and 23 footnote omitted), abrogated on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30 24 (2006). A petitioner satisfies the exhaustion requirement by fairly presenting all federal claims to 25 the highest state court before presenting them to the federal court. Baldwin v. Reese, 541 U.S. 26 27, 29 (2004) (citations omitted). Here, petitioner explicitly represents that he has not exhausted 27 //// 28 //// 1 || his available state court remedies! and, while he claims counsel was ineffective in addressing this 2 || matter, he has provided no reason why he was unable to seek relief in the state courts. 3 || Accordingly, the petition should be dismissed. 4 In accordance with the above, IT IS HEREBY ORDERED that: 5 1. Petitioner’s motion to proceed in forma pauperis (ECF No. 2) is GRANTED. 6 2. The Clerk of the Court shall randomly assign a United States District Judge to this 7 || action. 8 IT IS FURTHER RECOMMENDED that petitioner’s application for a writ of habeas 9 || corpus be dismissed. 10 These findings and recommendations are submitted to the United States District Judge 11 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 12 || after being served with these findings and recommendations, petitioner may file written 13 || objections with the court and serve a copy on all parties. Such a document should be captioned 14 || “Objections to Magistrate Judge’s Findings and Recommendations.” Petitioner is advised that 15 | failure to file objections within the specified time may waive the right to appeal the District 16 || Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 17 | DATED: July 31, 2023 ~ 18 Chtlternr—Clhor—e_ 19 ALLISON CLAIRE

UNITED STATES MAGISTRATE JUDGE

20 21 22 23 24 25 26 Q_—_ x Soda ' A search of the California Supreme Court’s website indicates that there have been no petitions 28 || filed by petitioner.