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HODGES v. NEWLAND

November 1, 2001

ERIC CEDRIC HODGES, PETITONER,
v.
A.C. NEWLAND, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Thelton E. Henderson, District Judge.

[EDITOR'S NOTE: THIS PAGE CONTAINED AND ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

INTRODUCTION

This matter is now before the court for consideration of the merits of Eric Cedric Hodges' pro se petition for writ of habeas corpus concerning his 1998 conviction in the Santa Clara County Municipal Court. For the reasons discussed below, the petition will be denied.

BACKGROUND On March 6, 1998, Hodges pled guilty in the Santa Clara County Municipal Court to assault by means of force likely to produce great bodily injury and admitted that he had suffered a prior conviction. In exchange for the plea, the prosecutor dismissed charges of corporal injury on a spouse or cohabitant and simple assault. On April 20, 1998, Hodges was sentenced to four years in prison, apparently based on the middle term of two years for the assault which was doubled as a result of the finding Hodges had suffered a prior conviction. See Respondent's Memorandum Of Points And Authorities In Support Of Answer To Order To Show Cause, p. 1.

Hodges did not appeal. He did file several petitions for writ of habeas corpus in state courts, but none were successful. The habeas petition filed in the California Supreme Court was denied on January 25, 2000, in a summary order that read: "Petition for writ of habeas corpus is DENIED. (In re Swain (1949) 34 Cal.2d 300, 304, 209 P.2d 793; People v. Duvall (1995) 9 Cal.4th 464, 474, 37 Cal.Rptr.2d 259, 886 P.2d 1252.)" Respondent's Motion To Dismiss, Exh. 4.

DISCUSSION

A. Standard of Review

This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d); see Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

B. Mootness

Respondent argues as a threshold matter that the action should be dismissed because the petition is now moot due to Hodges' release from prison. The court disagrees with respondent's assessment of the mootness issue.

Article III, § 2, of the Constitution requires the existence of a case or controversy through all stages of federal judicial proceedings. This means that, throughout the litigation, the plaintiff "must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision." Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). An incarcerated convict's (or a parolee's) challenge to the validity of his conviction satisfies the case-or-controversy requirement because the incarceration (or the restrictions imposed by the terms of the parole) constitutes a concrete injury, caused by the conviction and redressable by the invalidation of the conviction. Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). Once the convict's sentence has expired, however, some concrete and continuing injury other than the now — ended incarceration or parole — some "collateral consequence" of the conviction — must exist if the suit is to be maintained and not considered moot. Id. The rationale of Spencer does not, however, apply to a petitioner who has not completed his entire sentence. See United States v. Verdin, 243 F.3d 1174, 1178-79 (9th Cir.) (case not moot where defendant challenging sentence has not completed his entire sentence, but is in the first year of a three-year supervised release; if he prevails, he can be sentenced to a shorter period of supervised release), cert. denied, — U.S. —, 122 S.Ct. 178, — L.Ed.2d —, 70 U.S.L.W. 3239 (2001).

Hodges' petition is not moot. Although he has completed the institutional phase of his sentence, he is now on parole; his parole prevents this case from being moot. Respondent notes that Hodges "was sentenced to four years in prison, apparently based on the middle term of two years for the assault which was doubled as a result of the strike." Respondent's Memorandum of Points And Authorities In Support of Answer To Order To Show Cause, p. 1 (emphasis added). If Hodges prevails here and is resentenced without taking into consideration the juvenile adjudication, he might receive a sentence half as long as that earlier imposed. If so, that might advance the start and conclusion of the parole term for Hodges. The court is unable to conclude that this case is moot because of the prospect that Hodges' current parole term could end sooner if the writ is granted.

Respondent argues that Hodges "would be on parole regardless of the length of his sentence" and cites Spencer in support of his argument. Respondent's Memorandum of Points And Authorities in Support Of Answer To Order to Show Cause, p. 3. Spencer is distinguishable in that it concerned a petitioner who challenged a parole revocation but had completed the term imposed for that parole revocation. Hodges is challenging a sentence upon conviction for which he remains on parole. A favorable decision in the Spencer case could not undo or affect the parole violation term already served, see Spencer, 523 U.S. at 8, 118 S.Ct. 978, whereas a favorable decision in Hodges' case could advance the end date of the ...


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