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Honeycutt v. Lowery

United States District Court, D. Nevada

July 15, 2014

TERESA LOWERY, et al., Defendants.


ROBERT C. JONES, District Judge.

This pro se prisoner civil rights action comes before the Court for initial review of the complaint under 28 U.S.C. § 1915A. The initial partial filing fee has been paid. Following initial review, the Court directs plaintiff to show cause in writing why abstention is not required under Younger v. Harris, 401 U.S. 37 (1971).


Plaintiff Todd Honeycutt names as defendants, in their individual and official capacities, a prosecutor in his state criminal case, a detective and police officer, the district attorney and district attorney's office, the sheriff and police department, and the city and county.

As backdrop, the Court takes judicial notice of the record in plaintiff's federal habeas action in No. 2:06-cv-00634-RLH-GWF, which is indirectly referenced in the complaint and which reflects the following.[1]

Honeycutt was tried in Nevada state court initially on two counts of sexual assault and one count of kidnapping in connection with the alleged May 16, 1998, kidnapping and sexual assault of Karen Bates (the "sexual assault case"). The initial trial of the sexual assault case ended in a hung jury. Prior to a retrial in the sexual assault case, the State charged Honeycutt with solicitation to commit murder in allegedly seeking to have Bates murdered (the "solicitation case").

Both cases were tried in a joint trial over a defense objection. At the joint trial, the State introduced, inter alia, testimony by a jailhouse informant and an undercover officer seeking to establish that Honeycutt solicited them to murder Bates. Honeycutt was convicted on all charges in both cases in the joint trial.

This Court denied federal habeas relief, and the Ninth Circuit affirmed in part and reversed in part. The Ninth Circuit held that the introduction of Honeycutt's alleged statements to the jailhouse informant and the undercover officer as evidence of guilt in the joint trial gave rise to a Sixth Amendment violation under Massiah v. United States, 377 U.S. 201 (1964). On remand, this Court issued a conditional writ of habeas corpus vacating the convictions in both cases and ordering that Honeycutt be released if not retried within the time established in the order. A second appeal currently is pending directed primarily to the question of whether retrial as to the convictions in both cases is required by the prior panel decision. Briefing on the second appeal currently runs through November 20, 2014. If the Court's order granting a conditional writ vacating the convictions in both cases ultimately is affirmed, the State will have sixty days from the filing of the panel decision within which to file a notice of election as to its intent to retry Honeycutt, unless the order is stayed by a reviewing court. The Court's orders do not directly dictate whether Honeycutt must be retried in separate trials rather than again in a joint trial.

In the present § 1983 action, Honeycutt alleges that he was wrongfully convicted at the prior trial of the cases. He alleges, inter alia, that: (a) the defendant prosecutor, detective, and undercover officer manufactured false evidence consisting of an alleged handwriting by Honeycutt and knowingly presented perjured testimony by the officer; (b) another prosecutor in the case improperly conducted an impromptu demonstration involving mock choking Honeycutt on the stand, depriving him of a fair trial; and (c) the State withheld impeachment evidence that the jailhouse informant received a benefit for his testifying against Honeycutt.

The Ninth Circuit's decision affirming in part and reversing part did not grant Honeycutt relief based upon any of these alleged violations. The Ninth Circuit in fact affirmed the denial of relief with regard to a claim of prosecutorial misconduct based upon the mock choking incident. Such an episode of course very well may not reoccur in a retrial. The Ninth Circuit otherwise was not presented with, much less did it grant relief upon, claims of alleged manufactured evidence, perjured testimony and/or withholding of impeachment information.

In this civil rights action, plaintiff seeks compensatory and punitive damages along with injunctive relief "forcing defendants to create policies to prevent this kind of conduct." He maintains in the complaint that the action is not barred under Heck v. Humphrey, 512 U.S. 477 (1994), following upon the Ninth Circuit's decision. He contends that the action now is timely and proper.


Under the abstention doctrine in Younger v. Harris, 401 U.S. 37 (1971), absent extraordinary circumstances, a federal court may not enjoin or otherwise interfere with a pending state criminal proceeding through a grant of injunctive relief. Where Younger abstention is required, any claims for injunctive relief must be dismissed. Moreover, the action must be stayed as to any damage claims. See, e.g., Gilbertson v. Albright, 381 F.3d 965, 981 (9th Cir. 2004)( en banc ); see also Wallace v. Kato, 549 U.S. 384, 393-94 (2007)(if plaintiff files a damage action that would impugn a possible future conviction, a stay may be appropriate until the criminal proceedings are concluded); Heck v. Humphrey, 512 U.S. 477, 487 n.8 (1994)(similar). Younger abstention may be raised by the federal court sua sponte. See, e.g., San Remo Hotel v. City and County of San Francisco, 145 F.3d 1095, 1103 n.5 (9th Cir. 1998).

Plaintiff's convictions in the two cases in the joint trial have not been vacated unconditionally. On the pending appeal in the Ninth Circuit, it remains within the realm of possibility that the order vacating the conviction in the solicitation case may be reversed on what the Court characterized in that action as a debatable issue. Thereafter, following the appeal and on a retrial or retrials in one or both cases, Honeycutt possibly may be convicted again on the charges in one or both cases. Accordingly, the time that he has served, previously as well as prospectively up through that point, potentially again may be credited against a sentence or sentences on a then presumptively valid conviction or convictions.

Plaintiff thus effectively is in the same functional situation, at best, as a pretrial detainee on the charges in both cases, subject to the Ninth Circuit's disposition as to the conviction in the solicitation case. In that circumstance, with a retrial or retrials to come in what again will be a pending state criminal prosecution, Younger abstention is required. Accord Stouffer v. Whetsel, 2001 WL 1515868 (10th Cir. Nov. 29, 2001) (unpublished).[2]

Plaintiff accordingly will be required to show cause why the claims for injunctive relief should not be dismissed without prejudice[3] and his monetary damage claims stayed.

IT THEREFORE IS ORDERED that the Clerk of Court shall file the complaint[4] and the accompanying motion for appointment of counsel, with action being deferred on the motion.[5]

IT FURTHER IS ORDERED that, within thirty (30) days of entry of this order, plaintiff shall SHOW CAUSE in writing why his claims for injunctive relief should not be dismissed without prejudice and why all remaining claims for monetary relief should not be stayed, on the basis of Younger abstention. If plaintiff fails to timely respond to this order or fails to demonstrate that abstention is not appropriate in this case, the claims for injunctive relief will be dismissed without prejudice and the action will be stayed as to all remaining claims for relief pending the outcome of plaintiff's state criminal proceedings, through to the completion of all proceedings on direct review of any judgment of conviction.[6]

If a stay order is entered, the case will be administratively closed, without entry of a final judgment, until such time as an order is entered reopening the action.

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