United States District Court, D. Hawaii
ORDER DISMISSING PETITION AND DENYING CERTIFICATE OF
OKI MOLLWAY UNITED STATES DISTRICT JUDGE.
the court is Petitioner Harold Tomlin Hodges, Jr.'s
Petition Under 28 U.S.C. § 2241 for a Writ of Habeas
Corpus. ECF No. 1. Hodges challenges his conviction in the
Circuit Court of the Second Circuit (“circuit
court”), State of Hawaii, in State v. Hodges,
CR. No. 16-1-0422(1). See eCourt Kokua:
2PC161000422(1) (last visited 8/17/2017). Hodges's
Petition is DISMISSED without prejudice but without leave to
amend. Any pending motions are DENIED as moot. A certificate
of appealability is DENIED.
of the Rules Governing Section 2254 Cases, which applies
equally to habeas petitions brought pursuant to 28 U.S.C.
§ 2241,  requires the court to summarily dismiss a
habeas petition “[i]f it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief in the district court.”
filed this Petition on July 10, 2017, without payment of the
civil filing fee or an application to proceed in forma
pauperis. ECF No. 1.
11, 2017, the court issued a Deficiency Order that instructed
Hodges to pay the filing fee or submit an in forma pauperis
application within twenty-eight days. Order, ECF No. 2. The
time has passed for complying with this Order and Hodges has
not paid the fee nor sought in forma pauperis status.
available records reveal that Hodges was convicted and
sentenced in CR. No. 16-1-0422(1) on or about December 5,
2016. See 2PC161000422(1), eCourt Kokua:
https://jimspss1.courts.state.hi.us/JEFS. On January
31, 2017, Hodges filed a notice of appeal. Id. On
February 24, 2017, Hodges was appointed counsel or standby
counsel. Id. After a temporary remand to the circuit
court by the Intermediate Court of Appeals
(“ICA”), an amended judgment of conviction was
entered on May 22, 2017. The case remains on direct appeal.
are numerous reasons Hodges's Petition must be dismissed
traditional principles of comity and federalism, federal
courts may not interfere with pending state criminal
proceedings absent extraordinary circumstances. Younger
v. Harris, 401 U.S. 37, 45-46 (1971); Middlesex Cty.
Ethics Comm. v. Garden State Bar Ass'n, 457 U.S.
423, 431 (1982). These concerns are particularly important in
the habeas context when a state prisoner's conviction may
be reversed on appeal, rendering the federal issue moot.
Sherwood v. Tompkins, 716 F.2d 632, 634 (9th Cir.
1983). Absent extraordinary circumstances, abstention under
Younger is required when: (1) state judicial
proceedings are ongoing, (2) the state proceedings implicate
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 of. San Jose
Silicon Valley Chamber of Commerce Political Action Comm. v.
City of San Jose, 546 F.3d 1087, 1092 (9th Cir. 2008).
Normally, if Younger abstention applies, a court may
not retain jurisdiction but should dismiss the action.
Juidice v. Vail, 430 U.S. 327, 337 (1977); see
H.C. ex rel. Gordon v. Koppel, 203 F.3d 610, 613 (9th
Cir. 2000) (“When the case is one in which the
Younger doctrine applies, the case must be
when exceptions or extraordinary circumstances exist, a
district court may exercise jurisdiction even when the
Younger abstention criteria are met. See Baffert
v. Cal. Horse Racing Bd., 332 F.3d 613, 621 (9th Cir.
2003). Exceptions to Younger abstention include
state proceedings conducted in bad faith or to harass the
litigant, and a statute at issue that flagrantly and patently
violates express constitutional prohibitions in every clause,
sentence and paragraph. Id. (citing
Younger, 401 U.S. at 53).
is satisfied here, and no exception or extraordinary
circumstance has been shown justifying federal intervention.
Hodges's criminal proceedings involve important state
interests and are currently pending on direct appeal in the
state court. See Kelly v. Robinson, 479 U.S. 36, 49
(1986) (citing Younger, 401 U.S. at 44-45)
(“This Court has recognized that the States'
interest in administering their criminal justice systems free
from federal interference is one of the most powerful of the
consideration that should influence a court considering
equitable types of relief.”). Hodges is not barred from
litigating any federal constitutional issues in state court
and has an appointed attorney to ensure this possible
litigation. Finally, ...