United States District Court, D. Oregon
J. BROWN UNITED STATES SENIOR DISTRICT JUDGE
a pretrial detainee at the Washington County Jail, brings
this habeas corpus action pursuant to 28 U.S.C. § 2241.
For the reasons that follow, Petitioner must show cause why
the Court should not summarily dismiss his Petition for Writ
of Habeas Corpus.
April 28, 2003, a Washington County jury found Petitioner
guilty of aggravated murder, intentional murder, felony
murder, and first-degree kidnaping. State v.
Mora-Contreras, Washington County No. C012039CR (docket
sheet). On June 5, 2003, Washington County Judge Timothy
Alexander sentenced petitioner to life in prison without the
possibility of parole. Id. The Oregon Court of
Appeals affirmed petitioner's conviction without opinion,
and the Oregon Supreme Court denied review. State v.
Mora-Contreras, 215 Or.App. 703, 170 P.3d 1137 (2007),
rev. denied, 344 Or. 539, 186 P.3d 285 (2008) .
However, on January 31, 2018, the Marion County Circuit Court
granted state post-conviction relief to Petitioner and
remanded the case to Washington County for a retrial.
Mora-Contreras v. Belleque, Marion County No.
08C25103 (docket sheet). Petitioner is currently scheduled to
be retried in Washington County Circuit Court commencing on
April 7, 2020. State v. Mora-Contreras, No.
C012039CR (docket sheet).
Petition for Writ of Habeas Corpus to this Court, petitioner
alleges three claims for relief. First, Petitioner alleges
denial of his Sixth Amendment right to a speedy trial.
Second, Petitioner alleges a double jeopardy claim because he
was "acquitted" of the charges and is "being
punished again." Third, Petitioner alleges the
Washington County Jail is violating his right of access to
the courts by denying him access to all of his legal records
in order to aid and assist in his defense.
principles generally require a federal district court to
abstain from exercising jurisdiction over a habeas petition
in which the petitioner raises a claim under the Speedy Trial
Clause as an affirmative defense to state prosecution,"
absent a showing of extraordinary circumstances. Brown v.
Ahern, 676 F.3d 899, 901-03 (9th Cir. 2012); Carden
v. State of Montana, 626 F.2d 82, 83-84 (9th Cir. 1980);
See also Coleman v. Ahlin, 542 Fed.Appx. 549, 551
(9th Cir. 2013) (holding that district court may raise
abstention sua sponte). Extraordinary circumstances
exist in cases of proven harassment or prosecutions
undertaken by state officials in bad faith without hope of
obtaining a valid conviction, or in other extraordinary
circumstances where the petitioner will be irreparably harmed
by waiting until after trial to raise his speedy
trial claim. Brown, 676 F.3d at 902;
Carden, 626 F.2d at 84.
it is apparent Petitioner is asserting his speedy trial claim
as an affirmative defense to the state re-prosecution of the
crimes for which he was granted state post-conviction relief.
Accordingly, Petitioner must show cause what
extraordinary-circumstances warrant this Court's
intervention into his pending state prosecution.
Double Jeopardy Clause "'protects against successive
prosecutions for the same offense after acquittal or
conviction.'" Lemke v. Ryan, 719 F.3d 1093,
1099 (9th Cir. 2013) (quoting Monge v. California,
524 U.S. 721, 727-28 (1998)), cert, denied 571 U.S.
1212 (2014). However, "[t]he Double Jeopardy Clause is
not an absolute bar to successive trials." Justices
of Boston Mun. Court v. Lydon, 466 U.S. 294, 308 (1984)
. "It does not prevent the government from retrying a
defendant who succeeds in getting his first conviction set
aside, through direct appeal or collateral attack, because of
some error in the proceedings leading to conviction."
Lockhart v. Nelson, 488 U.S. 33, 38 (1988); see
also United States v. Scott, 437 U.S. 82, 90-91 (1978);
United States v. Tateo, 377 U.S. 463, 465 (1963).
Petitioner alleges that the Double Jeopardy Clause bars his
retrial because he was "acquitted" of the charges.
Petitioner's claim lacks merit because it appears his
retrial comes after his conviction was vacated on collateral
review, which is not the equivalent of an
"acquittal." Such a retrial does not violate the
Double Jeopardy Clause. Accordingly, Petitioner must show
cause why the Court should not summarily dismiss the
Denial of Access to the Courts
state prisoner is challenging the very fact or duration of
the prisoner's physical confinement, and the relief that
the prisoner seeks is a determination that the prisoner is
entitled to immediate or speedier relief from imprisonment,
the prisoner's sole remedy is a writ of habeas corpus.
Prieser v. Rodriguez,411 U.S. 475, 5001973);
Neal v. Shimoda,131 F.3d 818, 824 (9th Cir. 1997).
Where, however, a state prisoner seeks to the challenge the
conditions of confinement, a civil rights action