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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 DAVID GAMBOA, Case No. 1:23-cv-01647-SAB-HC

12 Petitioner,

ORDER TO SHOW CAUSE WHY

13 v. PETITION SHOULD NOT BE DISMISSED

14 DEPARTMENT OF HUMAN SERVICES

CHILD SERVICES,

15 Respondent. 16 17 I. 18 BACKGROUND 19 Petitioner is currently confined at the Lerdo Pre-Trial Facility in Bakersfield, California,. 20 (ECF No. 1 at 1.)1 On November 27, 2023, Petitioner filed the instant federal petition for writ of 21 habeas corpus. (ECF No. 1.) Petitioner lists the Kern County Superior Court as the “court which 22 entered the judgment of conviction under attack,” and the date of the alleged judgment of 23 conviction is June 8, 2023. (Id. at 1.) Petitioner states that the length of sentence is “POSSIBLE 24 TERMINATION OF PARENTAL RIGHTS.” (Id.) The petition states that Petitioner appealed to 25 the “SECOND DISTRICT COURT OF APPEAL RONALD REAGAN STATE,” and lists the 26 date of result as October 20, 2023. (Id. at 2.) Petitioner leaves blank the section regarding 27 whether he “sought further review of the decision on appeal by a higher state court.” (ECF No. 1 1 at 2.) The petition also states that Petitioner previously filed a petition, application, or motion 2 with respect to the challenged judgment in “CHILD DEPENDENCY COURT MONTERREY 3 PARK,” and was denied relief on August 22, 2022. (Id. at 2–3.) 4 II. 5 DISCUSSION 6 Rule 4 of the Rules Governing Section 2254 Cases2 requires preliminary review of a 7 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 8 to file a response, if it “plainly appears from the petition and any attached exhibits that the 9 petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 10 Cases in the United States District Courts, 28 U.S.C. foll. § 2254. 11 A. Cognizability in Federal Habeas Corpus 12 “Section 2241 establishes the general authority of the federal courts to issue habeas 13 relief,” Dominguez v. Kernan, 906 F.3d 1127, 1134 (9th Cir. 2018), and provides that habeas 14 corpus review is available to persons who are “in custody in violation of the Constitution or laws 15 or treaties of the United States,” 28 U.S.C. § 2241(c)(3). Section 2254 provides that federal 16 courts “shall entertain an application for a writ of habeas corpus in behalf of a person in custody 17 pursuant to the judgment of a State court only on the ground that he is in custody in violation of 18 the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). “Section 2254(a)’s 19 language permitting a habeas petition to be entertained “only on the ground that [the petitioner] 20 is in custody in violation of the Constitution or laws or treaties of the United States,” (emphasis 21 added), explicitly requires a nexus between the petitioner’s claim and the unlawful nature of the 22 custody.” Bailey v. Hill, 599 F.3d 976, 980 (9th Cir. 2010). 23 It is unclear, but Petitioner appears to challenge both his Kern County Superior Court 24 criminal proceedings and an adverse determination made by a juvenile dependency court in 25 Monterey Park, California regarding Petitioner’s parental rights.3 Any claim regarding a juvenile

26 2 The Court may apply any or all of these rules to habeas corpus petitions that are not brought under 28 U.S.C. § 2254. Rule 1(b), Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254. 27 3 This conclusion is supported by the fact that: (1) the petition states that Petitioner previously filed for relief in “CHILD DEPENDENCY COURT MONTERREY PARK”; (2) the petition states that Petitioner appealed to the 1 dependency court determination regarding parental rights does not challenge the unlawful nature 2 of Petitioner’s custody. Accordingly, Petitioner must inform the Court whether Petitioner is 3 challenging his Kern County Superior criminal proceedings and/or a juvenile dependency court 4 determination. Petitioner also will be required to show cause why the Court has habeas 5 jurisdiction over his challenge to any adverse determination made by a juvenile dependency 6 court. 7 B. Younger Abstention 8 In Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court held that when there is a 9 pending state criminal proceeding, federal courts must refrain from enjoining the state 10 prosecution. Younger, 401 U.S. at 41; Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584, 588 11 (2013). See also Kowalski v. Tesmer, 543 U.S. 125, 133 (2004) (“The doctrine of Younger v. 12 Harris . . . reinforces our federal scheme by preventing a state criminal defendant from asserting 13 ancillary challenges to ongoing state criminal procedures in federal court.”). “Younger 14 abstention is a jurisprudential doctrine rooted in overlapping principles of equity, comity, and 15 federalism.” San Jose Silicon Valley Chamber of Commerce Political Action Comm. v. City of 16 San Jose, 546 F.3d 1087, 1091 (9th Cir. 2008). 17 The Ninth Circuit has held that the “logical implication” of Younger “is that abstention 18 principles likewise prohibit a federal court from considering a pre-conviction habeas petition that 19 seeks preemptively to litigate an affirmative constitutional defense unless the petitioner can 20 demonstrate that ‘extraordinary circumstances’ warrant federal intervention.” Brown v. Ahern, 21 676 F.3d 899, 901 (9th Cir. 2012) (citing Carden v. Montana, 626 F.2d 82, 83 (9th Cir. 1980)). 22 Extraordinary circumstances include “cases of proven harassment or prosecutions undertaken by 23 state officials in bad faith without hope of obtaining a valid conviction,” or situations “where 24 irreparable injury can be shown.” Brown, 676 F.3d at 903 (internal quotation marks omitted) 25 (quoting Carden, 626 F.2d at 84). 26 Superior Court and Monterey Park, California is located in Los Angeles County; (3) Petitioner lists his sentence as 27 “POSSIBLE TERMINATION OF PARENTAL RIGHTS” and “POSSIBLE LOSS OF PARENTAL RIGHTS/PERMANENT LOSS OF PARENTAL RIGHTS”; and (4) Petitioner names the Department of Human 1 Here, it is unclear from the face of the petition whether Petitioner’s Kern County 2 Superior Court criminal proceeding is ongoing. Accordingly, Petitioner must inform the Court 3 whether Petitioner’s criminal proceeding is ongoing, and if so, whether extraordinary 4 circumstances make Younger abstention inappropriate. 5 C. Exhaustion 6 Habeas petitions are subject to an exhaustion requirement—either a judicially-created 7 prudential one under 28 U.S.C. § 2241, Dominguez, 906 F.3d at 1135 n.9, or a statutory one 8 under 28 U.S.C. § 2254(b). The exhaustion doctrine is based on comity to the state court and 9 gives the state court the initial opportunity to correct the state’s alleged constitutional 10 deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 11 518 (1982). A petitioner in state custody can satisfy the exhaustion requirement by providing the 12 highest state court with a full and fair opportunity to consider each claim before presenting it to 13 the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. Henry, 513 U.S. 14 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). 15 Thus, Petitioner must inform the Court whether each of his claims have been presented to 16 the California Supreme Court, and if possible, provide the Court with a copy of the petition filed 17 in the California Supreme Court that includes the claims now presented and a file stamp showing 18 that the petition was indeed filed in the California Supreme Court. 19 III. 20 ORDER 21 Based on the foregoing, Petitioner is ORDERED to SHOW CAUSE within THIRTY 22 (30) days from the date of service of this order why the petition should not be dismissed based 23 on Younger v. Harris, 401 U.S. 37 (1971), failure to exhaust state judicial remedies, and failure 24 to state a cognizable federal habeas corpus claim. 25 /// 26 /// 27 /// 1 Petitioner is forewarned that failure to follow this order will result in a recommendation 2 | for dismissal of the petition pursuant to Federal Rule of Civil Procedure 41(b) (a petitioner’s 3 | failure to prosecute or to comply with a court order may result in a dismissal of the action). 4 5 IT IS SO ORDERED. FA. ee 6 | Dated: _ December 11, 2023

UNITED STATES MAGISTRATE JUDGE

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