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
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.
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
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.