Freddie Wright v. D. Dexter

546 F.3d 1096

9th Cir.

2008

Check Treatment

Docket

Freddie WRIGHT, Petitioner, v. D. DEXTER, Warden, Respondent.

No. 08-73272.

United States Court of Appeals, Ninth Circuit.

Oct. 14, 2008.

1096-1113

Before: KIM McLANE WARDLAW, W. FLETCHER and JOHNNIE B. RAWLINSON, Circuit Judges.

Freddie Wright, Avenal, CA, pro se.

mission‘s proceeding, because it would “enjoin ... or otherwise involve the federal courts in terminating or truncating” the Elections Commission‘s proceeding. Green, 255 F.3d at 1098.⁴

CONCLUSION

The Elections Commission‘s proceeding is an “ongoing” “state-initiated proceeding” that “implicates important state interests“; Plaintiffs are “not barred from litigating federal constitutional issues“; and the “federal court action ... would enjoin the [state] proceeding.” Gilbertson, 381 F.3d at 978. Because there has been no showing of bad faith, harassment, or an extraordinary circumstance, we must abstain. We therefore do not reach the merits of Plaintiffs’ constitutional challenges to San Jose Municipal Code section 12.06.310, and the district court should not have done so.

We agree with Plaintiffs, of course, that political speech is vitally important. But the Supreme Court has never suggested that the importance of the interest asserted by a federal plaintiff affects the analysis of the Younger factors. Indeed, it would be hard to assert that the right to speech is more important than the liberty interest of the criminal defendant in Younger itself, where the Court held that federal courts were required to abstain.

Judgment VACATED. REMANDED with instructions to dismiss the case. Costs on appeal are awarded to Defendants.

ORDER

The application for authorization to file a second or successive 28 U.S.C. § 2254 habeas corpus petition in the district court is denied. Petitioner has not made a prima facie showing under 28 U.S.C. § 2244(b)(2) that:

(A) the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.

Petitioner asserts that the district court should vacate his sentence because it was imposed in violation of Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007). We have held that Cunningham “did not announce a new rule of constitutional law.” Butler v. Curry, 528 F.3d 624, 639 (9th Cir.2008). Therefore, Cunningham cannot form the basis of an application for a second or successive 28 U.S.C. § 2254 habeas corpus petition.

No petition for rehearing or motion for reconsideration shall be filed or entertained in this case. See 28 U.S.C. § 2244(b)(3)(E).

DENIED.

Notes

In , sitting en banc, we held that there must be “direct interference” with the state proceeding. . That holding is no longer good law. Sitting en banc again, we held that the interference need not be direct. . See (”Gilbertson did overrule Green‘s holding that ‘direct interference’ is a threshold requirement of Younger abstention,’ but it left intact the more general requirement that some interference with state court proceedings is a necessary ... element of the Younger doctrine.” (citation omitted) (first ellipsis in original)). Gilbertson expanded the interference requirement to cases in which the relief sought (such as money damages against the individuals on an administrative board) “would have the same practical effect on the state proceeding as a formal injunction.” . We need not examine the intricacies of the interference requirement because, here, the federal court action would “interfere” with the state proceedings even under Green‘s restricted test.