United States District Court, D. Arizona
REPORT AND RECOMMENDATION
S. WILLETT, Magistrate Judge.
HONORABLE PAUL G. ROSENBLATT, UNITED STATES SENIOR DISTRICT
before the Court is Louis Joseph Cassise's
("Petitioner") Petition under 28 U.S.C. Â§ 2254 for
a Writ of Habeas Corpus (Doc. 1) (the "Petition").
Respondents have filed a "Motion to Dismiss Habeas
Petition for Containing Only Unexhausted Claims" (Doc.
19). Petitioner has responded (Doc. 21), and Respondents have
replied (Doc. 22). With leave of Court, Petitioner filed a
"Supplement to Petioner's [sic] Response to Motion
to Dismiss Habeas Petition" (Doc. 25). Respondents filed
a Supplemental Reply (Doc. 26).
Petition contains six grounds for relief. The parties agree
that none of the six grounds have been exhausted in state
court. For the reasons set forth herein, it is recommended
that the Court dismiss the Petition without prejudice.
September 17, 2013, Petitioner signed a plea agreement in
which Petitioner agreed to plead guilty to ten counts of
public sexual indecency in violation of Arizona law. (Doc.
12-2 at 10-12). The trial court accepted Petitioner's
guilty pleas and entered judgment accordingly. ( Id.
at 14-17, 19-27). The trial court sentenced Petitioner to
consecutive two-year terms of imprisonment on two counts and
concurrent terms of lifetime probation on the remaining
counts. ( Id. at 21-23).
January 2014, Petitioner filed a Notice of Post-Conviction
Relief ("PCR"). ( Id. at 29-33).
Petitioner's appointed PCR counsel could not find a
colorable claim for PCR relief. ( Id. at 35-37).
Petitioner filed a pro se PCR Petition, which the trial court
denied on November 25, 2014. ( Id. at 39-63, 92).
December 22, 2014, Petitioner filed a Petition for Review in
the Arizona Court of Appeals seeking review of the trial
court's denial of the PCR Petition. ( Id. at
94). The Petition for Review became fully briefed on February
13, 2015. (Attachment 1). As of the date of this Report and
Recommendation, the Arizona Court of Appeals has not ruled on
the Petition for Review. ( Id. ).
9, 2015, Petitioner initiated this federal habeas proceeding.
(Doc. 1). The Court ordered Respondents to answer the
Petition. (Doc. 6). Respondents requested that the Court
extend the answer deadline until forty days after the Arizona
Court of Appeals rules on Petitioner's Petition for
Review. (Doc. 12, 14). The Court denied the request. (Doc.
17). In February 2016, Respondents filed the Motion to
Dismiss (Doc. 19). Petitioner filed a Response (Doc. 21), and
Respondents replied on February 17, 2016 (Doc. 22). In March
2016, the Court granted Petitioner's request for leave to
supplement his Response. (Doc. 23, 24). On April 11, 2016,
Petitioner filed his "Supplement to Petitioner's
Response" (Doc. 25). Respondents filed a Supplemental
Reply on April 15, 2016 (Doc. 26).
Court's September 15, 2015 Order details Petitioner's
six grounds for habeas relief as follows:
In Ground One, Petitioner alleges that the Arizona Court of
Appeals failed to timely rule on his petition for review from
the denial of state post-conviction relief in violation of
his federal due process rights and his right to a speedy
disposition in violation of the Sixth Amendment. In Ground
Two, he alleges that the trial court abused its discretion in
violation of his federal due process rights by denying his
state petition for post-conviction relief. In Ground Three,
Petitioner asserts that his conviction for multiple offenses
violated his Fifth Amendment double jeopardy rights. In
Ground Four, Petitioner alleges that counts 1 and 2 were
aggravated and multiplicitous in violation of his Fifth
Amendment double jeopardy rights. In Ground Five, Petitioner
asserts that lifetime probation and requiring him to register
as a sex offender violated his federal due process and double
jeopardy rights. In Ground Six, Petitioner alleges that his
federal due process rights were violated by the severity of
his sentences, gross misrepresentations, and unethical
(Doc. 6 at 2). Based on the following discussion, the
undersigned concludes that the Court should dismiss the
Petition (Doc. 1).
Younger Abstention Doctrine
Younger v. Harris, 401 U.S. 37 (1971), the United
States Supreme Court held that a federal court generally
cannot interfere with pending state criminal proceedings.
This holding, commonly referred to as the "
Younger abstention doctrine, " is based on the
principle of federal-state comity. See id. at 44;
Miofsky v. Superior Court, 703 F.2d 332, 336 (9th
Cir. 1983) ("The Younger doctrine was borne of
the concern that federal court injunctions might unduly
hamper a state in its prosecution of criminal laws.").
The Younger abstention doctrine applies to both
trial and direct appeal proceedings. See New
Orleans Pub. Serv., Inc. v. Council of City of New
Orleans, 491 U.S. 350, 369 (1989) ("For
Younger purposes, the State's trial-and-appeals
process is treated as a unitary system, and for a federal
court to disrupt its integrity by intervening in mid-process
would demonstrate a lack of respect for the State as
sovereign."); Huffman v. Pursue, Ltd. v.
Pursue, Ltd., 420 U.S. 592, 608 (1975) ("[A]
necessary concomitant of Younger is that a party
[wishing to contest in federal court the judgment of a state
judicial tribunal] must exhaust his state appellate remedies
before seeking relief in the District Court....");
Drury v. Cox, 457 F.2d 764, 764-65 (9th Cir. 1972)
("Our reading of [ Younger ] convinces us that
only in the most unusual circumstances is a defendant
entitled to have federal interposition by way of injunction
or habeas corpus until after the jury comes in, judgment has
been appealed from and the case concluded in the state
courts"); Roberts v. Dicarlo, 296 F.Supp.2d
1182, 1184-85 (C.D. Cal. 2003) (dismissing federal habeas
petition pursuant to Younger abstention doctrine
when the petitioner filed his federal habeas petition while
state court direct appeal was pending).
Younger abstention is required when the following
three factors are met: (i) state proceedings are ongoing,
(ii) the state proceedings implicate important state
interests, and (iii) the state proceedings afford an adequate
opportunity to pursue federal claims in the ongoing state
proceeding. Middlesex County Ethics Comm. v. Garden State
Bar Ass'n, 457 U.S. 423, 432 (1982); Columbia
Basin Apartment Ass'n v. City of Pasco, 268 F.3d
791, 799-801 (9th Cir. 2001).
Younger factors are satisfied, a federal court must
not interfere with the ongoing state proceeding unless
extraordinary circumstances exist, such as a threat of
irreparable injury that is "both great and
immediate." Younger, 401 U.S. at 46 ("even
irreparable injury is insufficient unless it is both great
and immediate'") (citation omitted). Extraordinary
circumstances may also include bad faith or harassment on the
part of the state. Middlesex County Ethics Comm.,
457 U.S. at 437 (holding that Younger abstention was
required where there "no bad faith, harassment, or other
exceptional circumstances dictate[d] to the contrary").
The Ninth Circuit has found extraordinary circumstances where
a defendant is facing retrial and federal intervention is
necessary to prevent a violation of the Double Jeopardy
Clause. Mannes v. Gillespie, 967 F.2d 1310 (9th Cir.
1992); Hartley v. Neely, 701 F.2d 780, 781 (9th Cir.
1983). "The Fifth Amendment's protection against
double jeopardy... is not against being twice punished, but
against being twice put in jeopardy.'"
Mannes, 967 F.2d at 1312 (quoting United States
v. Ball, 163 U.S. 662, 669 (1896)). Hence, "full
vindication of the right necessarily requires intervention
before trial...." Id. (citing Hartley,
701 F.2d at 781).
three Younger factors are satisfied in this case.
First, it is undisputed that Petitioner's of-right PCR
proceeding is ongoing. Second, the State of Arizona has an
important interest in assessing and correcting violations of
a defendant's rights. Finally, Petitioner has been
afforded an adequate state forum to pursue his federal
claims. See Pennzoil Co. v. Texaco, Inc.,
481 U.S. 1, 15 (1987) (a federal court should assume that
state procedures will afford an adequate opportunity for
consideration of constitutional claims "in the absence
of unambiguous authority to the contrary"). A ruling on
the merits of Petitioner's habeas claims would have the
practical effect of enjoining the state proceedings to the
extent the Arizona Court of Appeals might address the claims.
the three Younger factors have been met, the Court
must abstain from intervening in the PCR proceeding unless
extraordinary circumstances exist. Although the Petition for
Review was filed in December 2014 and has been ripe for
decision since February 2015, an ordinary ...