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Cassise v. Ryan

United States District Court, D. Arizona

June 8, 2016

Louis Joseph Cassise, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          EILEEN S. WILLETT, Magistrate Judge.

         TO THE HONORABLE PAUL G. ROSENBLATT, UNITED STATES SENIOR DISTRICT JUDGE:

         Pending before the Court is Louis Joseph Cassise's ("Petitioner") Petition under 28 U.S.C. § 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).

         The 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.

         I. BACKGROUND

         On 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).

         In 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).

         On 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.[1] ( Id. ).

         On July 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).

         II. DISCUSSION

         The 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 judicial conduct.

(Doc. 6 at 2). Based on the following discussion, the undersigned concludes that the Court should dismiss the Petition (Doc. 1).

         A. Younger Abstention Doctrine

         In 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).

         If the 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).

         All three Younger factors are satisfied in this case. First, it is undisputed that Petitioner's of-right PCR proceeding is ongoing.[2] 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.

         Because 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 ...


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