United States District Court, D. Nevada
M. NAVARRO UNITED STATES DISTRICT JUDGE .
habeas matter is before the Court on consideration of
Petitioner Afshin Bahrampour's Application to Proceed
In Forma Pauperis (ECF No. 1) as well as initial
review under the Rules Governing Section 2254
Cases. Bahrampour has submitted a pro se
Petition for Writ of Habeas Corpus (ECF No. 1-1). For the
reasons discussed below, the Court denies the application for
in forma pauperis (“IFP”) status and
dismisses the petition without prejudice.
filing fee is required to initiate a habeas action in a
federal district court. The Court may authorize a prisoner to
begin an action without prepaying the filing fee if the
prisoner submits an IFP application on the approved form
along with the appropriate supporting documentation. 28
U.S.C. § 1915(a); LSR 1-1, LSR 1-2. Although Bahrampour
submitted the required form and supporting documents, the
Court denies his IFP application based on the multiple
substantial defects explained in this order and resulting
dismissal of his petition.
to Habeas Rule 4, the assigned judge must examine the habeas
petition and order a response unless it “plainly
appears” the petitioner is not entitled to relief.
See also Valdez v. Montgomery, 918 F.3d 687, 693
(9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124,
1127 (9th Cir. 1998). This rule allows courts to screen and
dismiss petitions that are patently frivolous, vague,
conclusory, palpably incredible, or false. Hendricks v.
Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). The court
may also dismiss claims at screening for procedural defects.
See Boyd, 147 F.3d at 1128.
is charged in a grand jury indictment returned on July 29,
2019, in the Eighth Judicial District Court for Clark County,
Nevada (“state court”). State of Nevada v.
Bahrampour, No. C-19-342022-1. The indictment alleges nine
felony and misdemeanor charges, including: count one - act of
terrorism or attempted act of terrorism; count two - third
degree arson; count three - fourth degree arson; count four -
burglary motivated by bias or hated toward the victim; count
five - first degree arson motivated by bias or hated toward
the victim; count six - damage to property used for religious
purposes; and counts seven, eight, and nine - third degree
arson motivated by bias or hated toward the victim. (ECF No.
1-2 at 1-6.) Bahrampour is currently detained at the Clark
County Detention Center. (ECF No. 1-1 at 1.)
petition claims Bahrampour is bringing a pretrial challenge
to the constitutionality of the charges alleged in the state
court indictment pursuant to 28 U.S.C. § 2241.
(Id. at 31.) The request for relief seeks dismissal
of the grand jury indictment and a finding that selected
criminal statutes are void for vagueness. (Id.)
Bahrampour alleges eight grounds for relief: (1) NRS
202.4415, which defines “act of terrorism, ” is
overbroad and void for vagueness; (2) count one of the
indictment, alleging acts of terrorism or attempted acts of
terrorism, violates the laws of the United States because it
contains the disjunctive “or” in 26 separate
instances in one paragraph, which does not sufficiently
provide a defendant notice to prepare a defense; (3) the
arson charges alleged in counts two and three of the
indictment are not sufficient to establish a criminal act
because available video evidence shows a suspect burning his
own property, rather than the property of another person; (4)
count four of the indictment is not supported by probably
cause or “slight or marginal evidence” to show
that felonious intent, but results from “mere
speculation”; (5) count five of the indictment is not
justified because no part of the building ignited; (6)(a) NRS
193.021, which defines “personal property, ” is
void for vagueness, and (6)(b) NRS 41.690, which defines
crimes “motivated by hated or bias, ” violates
Bahrampour's free speech rights protected by the First
Amendment; (8) the use of “acoustic psycho-correction
via bone conduction” and other testing of
“electronic products” on Bahrampour without his
consent violates his liberty interests in bodily integrity
under the Due Process Clause of the Fourteenth Amendment and
due process rights under the Fifth Amendment; (8) 18 U.S.C.
§ 2331, which provides the federal definitions for
“international terrorism, ” is impermissible
vague and overbroad. (Id. at 8-32.)
the petition is subject to multiple substantial defects.
First, the petition improperly seeks federal judicial
intervention in a pending state criminal proceeding. The
Younger abstention doctrine prevents federal courts
from enjoining pending state court criminal proceedings, even
if there is an allegation of a constitutional violation,
unless there is an extraordinary circumstance that creates a
threat of irreparable injury. Younger v. Harris, 401
U.S. 37, 53-54 (1971). The Supreme Court has instructed that
“federal-court abstention is required”
when there is “a parallel, pending state criminal
proceeding.” Sprint Commc'ns, Inc. v.
Jacobs, 571 U.S. 69, 72 (2013) (emphasis added).
Irreparable injury does not exist if the threat to a
petitioner's federally protected rights may be eliminated
through his or her defense of the criminal case.
Younger, 401 U.S. at 46.
Petitioner has not alleged or demonstrated that he fully
exhausted his state court remedies. A criminal defendant
seeking federal habeas relief to restrain ongoing state
criminal proceedings must fully exhaust his state court
remedies before presenting his constitutional claims to the
federal courts. E.g., Arevalo v. Hennessy,
882 F.3d 763, 764-67 (9th Cir. 2018) (finding that California
petitioner properly exhausted his state remedies by filing
two motions in the trial court, a habeas petition in the
court of appeal, and a habeas petition in the state supreme
court, each of which was denied). The exhaustion requirement
ensures that state courts, as a matter of federal-state
comity, will have the first opportunity to review and correct
alleged violations of federal constitutional guarantees.
Coleman v. Thompson, 501 U.S. 722, 731 (1991). As a
general rule, a federal court will not entertain a petition
seeking intervention in an ongoing state criminal proceeding
absent extraordinary circumstances, even when a
petitioner's claims were otherwise fully exhausted in the
state courts. E.g., Sherwood v. Tomkins,
716 F.2d 632, 634 (9th Cir. 1983); Carden v.
Montana, 626 F.2d 82, 83-85 (9th Cir. 1980).
extraordinary circumstances are presented here.
Bahrampour's petition challenges the constitutionality of
the charges alleged in the indictment. (Id. at 31.)
The prosecution is ongoing. To the extent that he faces
possible limitations on his free speech rights from a
conviction, his situation is not different in substance from
any criminal defendant facing potential loss of
constitutional rights in a pending criminal prosecution
-including the most fundamental right, to liberty. Defendants
in state criminal cases routinely allege that state charges
violate their constitutional rights, which makes this a
regular occurrence, not an extraordinary circumstance.
Bahrampour's pretrial motion practice or defenses at
trial may eliminate any threat to his federally protected
rights. Additionally, the state court docket indicates that a
petition for writ of habeas corpus is currently pending
before the trial judge. It is clear that Bahrampour has not
exhausted his state court remedies. For these reasons,
abstention and dismissal are required.
the multiple substantial defects presented, this matter will
be dismissed without prejudice. Dismissal of this action
without prejudice will not materially impact the analysis of
any issue in a later filed habeas proceeding, or otherwise
result in substantial prejudice.
Petitioner Afshin Bahrampour's Application to Proceed
In Forma Pauperis (ECF No. 1) is DENIED.
Bahrampour's petition (ECF No. 1-1) is DISMISSED without
certificate of appealability is DENIED, as jurists of reason
would not find dismissal of the ...