United States District Court, D. Nevada
JUSTIN D. PORTER, Petitioner,
EIGHTH JUDICIAL DISTRICT COURT, et al., Respondents.
C. MAHAN, United States District Judge
has submitted an application to proceed in forma
pauperis (ECF No. 4). The court finds that petitioner is
unable to pay the filing fee.
commenced this action with a document titled “Petition
the government for a redress of grievances.” According
to petitioner, since 2001 he has been awaiting trial on
multiple charges. In 2008, the state district court severed
one count each of burglary while in possession of a deadly
weapon, attempted robbery with the use of a deadly weapon,
and murder with the use of a deadly weapon. In 2009,
petitioner was tried on those severed charges, and the jury
found him guilty of second-degree murder with the use of a
deadly weapon. The state district court sentenced petitioner
to two consecutive sentences of life imprisonment with
eligibility for parole starting after ten years. Petitioner
has not yet been tried on the remaining charges. Petitioner
asked this court to enter orders directing the state district
court to dismiss the remaining charges as a speedy-trial
violation. The Honorable Nancy J. Koppe, Magistrate Judge,
noted correctly that this court does not have appellate
jurisdiction over the state courts and that this court should
not interfere with pending state prosecutions. Judge Koppe
directed petitioner to show cause why the action should not
be dismissed. Order (ECF No. 3). Petitioner then filed a
document titled “Amended Petition” (ECF No. 5).
Then petitioner filed a document titled “Request for
the Correction of Error” (ECF No. 6); petitioner states
that he did not intend to file an amended petition, but a
supplemental petition. The court has reviewed these
documents, and the court will dismiss this action.
See 28 U.S.C. § 2243.
is claiming that his constitutional right to a speedy trial
is being violated. He does not want the court to order the
state district court to bring him to trial. Instead, he wants
the court to order the state district court to dismiss the
criminal charges pending against him. Federal courts should
abstain from intervening in pending state criminal
proceedings unless there are the extraordinary circumstances
of a great and immediate danger of irreparable harm.
Younger v. Harris, 401 U.S. 37, 45-46 (1971);
see also Ex Parte Royall, 117 U.S. 241, 251 (1886).
A court “must abstain under Younger if four
requirements are met: (1) a state-initiated proceeding is
ongoing; (2) the proceeding implicates important state
interests; (3) the federal plaintiff is not barred from
litigating federal constitutional issues in the state
proceeding; and (4) the federal court action would enjoin the
proceeding or have the practical effect of doing so, i.e.,
would interfere with the state proceeding in a way that
Younger disapproves.” San Jose Silicon Valley
Chamber of Commerce Political Action Committee v. City of San
Jose, 546 F.3d 1087, 1092 (9th Cir. 2008). First,
criminal proceedings are ongoing in state court. Second,
prosecution of crimes is an important state interest. See
Kelly v. Robinson, 479 U.S. 36, 49 (1986); Rose v.
Mitchell, 443 U.S. 545, 585 (1979); Younger,
401 U.S. at 43-44. Third, petitioner may raise his
constitutional claims in the state courts, by motions before
the trial court, on appeal, or in a post-conviction habeas
corpus petition. Furthermore, “the Speedy Trial Clause,
when raised as an affirmative defense, does not embody a
right which is necessarily forfeited by delaying review until
after trial.” Carden v. Montana, 626 F.2d 82,
84 (9th Cir. 1980). “[A] speedy trial claim is best
reviewed after trial when the district court's dismissal
is more conclusive and allegations of prejudice are less
speculative.” Id (citing United States v.
MacDonald, 435 U.S. 850 (1978)).Fourth, if this court granted
petitioner relief, it would result in the termination of his
state-court criminal action, which is an action that
Younger disapproves. Because all four requirements
of Younger are met, this court must abstain from
considering the petition.
jurists would not find the court's conclusion to be
debatable or wrong, and the court will not issue a
certificate of appealability.
court denies the “Request for the Correction of
Error” (ECF No. 6) because, no matter how the court
construes the initial petition and the amended petition, the
court needs to dismiss the action.
THEREFORE IS ORDERED that the application to proceed in
forma pauperis (ECF No. 4) is GRANTED.
Petitioner need not pay the filing fee of five dollars
FURTHER IS ORDERED that petitioner's “Request for
the Correction of Error” (ECF No. 6) is
DENIED IT FURTHER IS ORDERED that this
action is DISMISSED without prejudice to
petitioner litigating his claims in the correct forum and at
the correct time. The clerk of the court shall enter judgment
accordingly and close this action.
FURTHER IS ORDERED that a certificate of appealability will
 In this case, prejudice appears to be
completely speculative. As noted above, petitioner already
has received two consecutive sentences of life imprisonment
with minimum parole eligibility after ten years. A review of
the Nevada Department of Corrections' website shows that
petitioner has been paroled institutionally from the first of
those sentences and that, barring some unforeseen
development, he will be eligible for parole on the second
sentence on August 1, 2023.
visited May 10, 2018). Petitioner is not deprived of ...