1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ONIS CARRABINE POTTER, Case No. 2:23-cv-02489-JDP (HC) 12 Petitioner, ORDER GRANTING PETITIONER’S

APPLICATION TO PROCEED IN FORMA

13 v. PAUPERIS 14 STATE OF IDAHO, ECF No. 6 15 Respondent. FINDINGS AND RECOMMENDATIONS

THAT THE PETITION BE DISMISSED FOR

16 FAILURE TO STATE A VIABLE CLAIM 17 ECF No. 1 18 Petitioner, an inmate in the Sacramento County Jail, seeks a writ of habeas corpus under 19 28 U.S.C. § 2254. He acknowledges, however, that he has not yet been convicted. ECF No. 1 at 20 1. Thus, he is not entitled to relief under 28 U.S.C. § 2254. I recommend that his petition be 21 denied. I will grant his application to proceed in forma pauperis. ECF No. 6. 22 The petition is before me for preliminary review under Rule 4 of the Rules Governing 23 Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine 24 the habeas petition and order a response to the petition unless it “plainly appears” that the 25 petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); 26 Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 27

28 1 Federal habeas jurisdiction under section 2254 is available only where a petitioner is in 2 | custody pursuant to a state court criminal judgment. See Stow v. Murashige, 389 F.3d 880, 886 3 | (9th Cir. 2004). Here, petitioner acknowledges that he has not yet been convicted. ECF No. | at 4 | 1. Thus, he lacks standing to pursue habeas relief in this action. Additionally, given that state 5 || court proceedings, in California and potentially in Idaho, appear to be ongoing, this action runs 6 | afoul of the Younger abstention doctrine. Under the Supreme Court’s decision in Younger v. 7 | Harris, federal courts must abstain from enjoining state court criminal prosecutions in all but the 8 | most exceptional circumstances. 401 U.S. 37, 45-46 (1971). Petitioner has failed to identify such 9 | circumstances here. 10 Accordingly, it is ORDERED that: 11 1. Petitioner’s application to proceed in forma pauperis, ECF No. 6, is GRANTED. 12 2. The Clerk of Court shall assign a district judge to this action. 13 Further, it is RECOMMENDED that the petition, ECF No. 1, be DISMISSED for failure 14 | to state a claim upon which relief may be granted. 15 These findings and recommendations are submitted to the United States District Judge 16 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 17 || after being served with these findings and recommendations, any party may file written 18 | objections with the court and serve a copy on all parties. Such a document should be captioned 19 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 20 | objections shall be served and filed within fourteen days after service of the objections. The 21 | parties are advised that failure to file objections within the specified time may waive the right to 22 || appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 23 | v. Yist, 951 F.2d 1153 (9th Cir. 1991). 24 95 IT IS SO ORDERED. 26 | q Sty — Dated: _ November 30, 2023 q——— 27 JEREMY D. PETERSON

UNITED STATES MAGISTRATE JUDGE

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