United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
case is a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241 by Petitioner Francis Gaon, who, according
to his petition, is in custody awaiting trial on a felony
charge of driving and/or being in actual physical control
while under the influence of intoxicating liquor (DUI) under
NRS §§ 484C.110 and 484C.410. (See
Petition for Writ of Habeas Corpus (ECF No. 1).) Gaon is
represented by counsel in this action. Gaon's petition
names as respondents: “Sheriff Joseph Lombardo,
Respondent, ” and “State of Nevada, Real Party in
Interest” (collectively, “Respondents”).
petition, Gaon claims that NRS § 484C.410 is
unconstitutionally vague, in violation of his rights under
the federal constitution. (See id.) Gaon seeks
“[a]n Order finding that NRS [§] 484C.410 is
constitutionally void for vagueness and releasing Gaon from
custody under the [s]tate filed information.” (See
id. at 5.)
December 5, 2017, Respondents filed a motion to dismiss (ECF
No. 9), grounded on the Younger abstention doctrine.
See Younger v. Harris, 401 U.S. 37 (1971).
December 28, 2017, Gaon filed a motion requesting a
“stay” of the state court criminal proceedings.
(ECF No. 10.) Gaon argued in his motion that a stay was
necessary because, without it, the state criminal trial would
occur before his federal habeas petition could be
adjudicated. The Court denied the motion for a stay on
Younger abstention grounds. (See Order
entered December 28, 2017 (ECF No. 11).)
January 3, 2018, Gaon filed an opposition to Respondents'
motion to dismiss. (ECF No. 12.) Respondents replied on
January 31, 2018. (ECF No. 13.)
abstention is a jurisprudential doctrine rooted in
overlapping principles of equity, comity, and
federalism.” San Jose Silicon Valley Chamber of
Com. Pol. Action Committee v. City of San Jose, 546 F.3d
1087, 1091 (9th Cir. 2008). “[A]bstention principles
... prohibit a federal court from considering a
pre-conviction habeas petition that seeks preemptively to
litigate an affirmative constitutional defense unless the
petitioner can demonstrate that ‘extraordinary
circumstances' warrant federal intervention.”
Brown v. Ahern, 676 F.3d 899, 901 (9th Cir. 2012)
(citing Carden v. St. of Mont., 626 F.2d 82, 83 (9th
Cir. 1980)). “[T]he category of ‘extraordinary
circumstances' . . . encompass[es] only ‘cases of
proven harassment or prosecutions undertaken by state
officials in bad faith without hope of obtaining a valid
conviction,' or where ‘irreparable injury can be
shown.'” Id. at 901 (quoting
Carden, 626 F.2d at 83).
case falls squarely under the Younger abstention
doctrine. Gaon claims that a state statute, under which he is
being prosecuted, is unconstitutionally vague, and,
therefore, the prosecution should be enjoined by this federal
court. This was the position of the plaintiff in the
Younger case itself, who claimed that the California
Criminal Syndicalism Act was vague and overbroad, and who
sought an injunction stopping his prosecution under that act.
In Younger, the Supreme Court recognized principles
of comity and federalism in holding that federal judges are
not to stay state criminal proceedings absent extraordinary
circumstances, which may be found when there is danger of
irreparable injury or where the prosecution is in bad faith.
See Younger, 401 U.S. at 43-55. The Supreme Court
instructed that the irreparable injury warranting federal
injunctive relief must be injury beyond “that
incidental to every criminal proceeding brought lawfully and
in good faith.” Id. at 47 (quoting Douglas
v. City of Jeannette, 319 U.S. 157, 164 (1943)).
is no showing that the issue of the alleged vagueness of NRS
§ 484C.410 must be litigated in federal court before
Gaon's state criminal trial in order to prevent the sort
of irreparable injury contemplated in Younger.
Gaon's attempt to characterize NRS § 484C.410 as a
statute of limitations, and, in turn, to liken his claim to a
double jeopardy claim, warranting immediate federal
injunctive relief, is unsupported and unconvincing.
(See Opposition to Motion to Dismiss (ECF No. 12 at
does Gaon show that his prosecution under NRS § 484C.410
is in bad faith. (See id. at 12-15.) The Court finds
Gaon's argument in this regard to be wholly without
Court determines that this habeas action is subject to
dismissal, as barred by the Younger abstention
Court determines, further, that a certificate of
appealability is unwarranted. The issuance of a certificate
of appealability is governed by 28 U.S.C. § 2253(c). The
Supreme Court has interpreted section 2253(c) as follows:
Where a district court has rejected the constitutional claims
on the merits, the showing required to satisfy § 2253(c)
is straightforward: The petitioner must demonstrate that
reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong.
The issue becomes somewhat more complicated where, as here,
the district court dismisses the petition based on procedural
grounds. We hold as follows: When the district court denies a
habeas petition on procedural grounds without reaching the
prisoner's underlying constitutional claim, a COA should
issue when the prisoner shows, at least, that jurists of
reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.
Slack v. McDaniel,
529 U.S. 473, 484 (2000); see
also James v. Giles,221 F.3d 1074, 1077-79 (9th Cir.
2000). Applying this standard, the Court finds that a
certificate of appealability is not warranted. Jurists of
reason would not find debatable the ...