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United States District Court, N.D. California

April 1, 2004.


The opinion of the court was delivered by: SUSAN ILLSTON, District Judge


The petition for writ of habeas corpus is dismissed as moot.




  Kanuri Surgury Qawi, currently in custody at the Napa State Hospital, filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent filed an answer to the petition. For the reasons discussed below, the petition is dismissed as moot.


  Qawi was sentenced to a four — year prison term in 1991 after he was found guilty of an assault. Once he was done with his prison term, Qawi was subjected to proceedings under California Penal Code § 2970, resulting in his commitment to a state mental hospital as a mentally disordered offender ("MDO"). He was committed in 1996, 1997, 1998, 1999, 2000, 2001, 2002, and 2003.

  In the habeas petition filed here, Qawi challenges his 2002 commitment. He alleges that he was forcibly medicated to testify at the commitment proceedings, in violation of his right to due process. He also alleges that he was unable to access this court because of the forced Page 2 medication and because the former respondent had not supplied him with pens, papers, or envelopes. The question of the state's ability to forcibly medicate Qawi was recently decided in In re Qawi, 32 Cal.4th 1 (Cal. 2004). The petition before this court, filed months before the California Supreme Court issued its decision in In re. Qawi, does not concern the propriety of Qawi being medicated in general. Rather, Qawi's federal petition concerns the propriety of medication only as it relates to the 2002 commitment proceedings.

  The decision at issue here is the February 8, 2002 commitment order that provided for Qawi's recommitment "to Napa State Hospital forthwith for the period of time terminating on February 17, 2003." Resp. Exh. 8. He was recommitted in 2003. The commitment order filed January 13, 2003 provided that he was to be recommitted "to Napa State Hospital for the period of one year beginning February 17, 2003 and terminating February 17, 2004." Resp. Exh. 1.

  Qawi's commitment status after February 17, 2004 is not known because the parties completed their briefing before the 2003 commitment order had expired. His current commitment status does not affect the court's analysis of his petition.


  Article III, § 2, of the U.S. Constitution requires the existence of a case or controversy through all stages of federal judicial proceedings. This means that, throughout the litigation, the petitioner/plaintiff "must have suffered, or be threatened with, an actual injury traceable to the [respondent/defendant] and likely to be redressed by a favorable judicial decision." Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990).

  An incarcerated (or paroled) convict'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 (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. Courts may presume that a criminal Page 3 conviction has continuing collateral consequences. See id at 8-12 (noting that Supreme Court has been willing to accept hypothetical collateral consequences for criminal convictions); Evitts v. Lucey, 469 U.S. 387, 391 n.4 (1985) (accepting as collateral consequence possibility that conviction may be used in future criminal proceeding to enhance sentence). But this presumption does not extend to other contexts. See Spencer, 523 U.S. at 13; Lane v. Williams 455 U.S. 624, 632-33 (1982). A petitioner who seeks to challenge the revocation of his parole, for example, must demonstrate that continuing collateral consequences exist if the underlying sentence has expired, see Spencer. 523 U.S. at 14-18, or if the term imposed for violating parole has been served, see Cox v. McCarthy, 829 F.2d 800, 803 (9th Cir. 1987) (claim moot because petitioner cannot be released from term imposed for violating parole that he has already served). Claims of detriment in a future parole or sentencing proceeding, impeachment in future court proceedings, or use against him if he appears as a defendant in a future criminal proceeding do not constitute sufficient proof of collateral consequences. See Spencer. 523 U.S. at 14-16.

  The rationale of Spencer v. Kemna applies to Qawi's challenge to his civil recommitment in 2002 under the MIX) law. Specifically, because Qawi does not attack the validity of his underlying criminal convictions, but rather the validity of his now — expired February 8, 2002 one — year civil recommitment under the MDO law, he must demonstrate that continuing collateral consequences exist. Cf. United States v. Palomba, 182 F.3d 1121, 1122-23 (9th Cir. 1999) (rationale of Spencer v. Kemna applies where petitioner seeks to challenge expired sentence rather than underlying criminal conviction). Qawi does not do so.

  The possibility that Qawi's now — expired initial commitment and subsequent recommitments may be relevant in further recommitment proceedings is not sufficient to demonstrate collateral consequences under Spencer v. Kemna. Cf. Spencer. 523 U.S. at 14-16 (claims of detriment in a future parole or sentencing proceeding, impeachment in a future criminal or civil proceeding, or use against him should he appear as a defendant in a future criminal proceeding do not constitute sufficient proof of collateral consequences).

  There is a well — established exception to the mootness doctrine where a claim is "capable of repetition yet evading review." Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1509 Page 4 (9th Cir. 1994); Wiggins v. Rushen, 760 F.2d 1009, 1011 (9th Cir. 1985). However, there is no basis for expanding this exception to where a claim is simply capable of repetition yet evading federal review. California affords Qawi state judicial review of his initial commitment and all subsequent recommitments. It cannot be said that Qawi's claims will evade review unless his federal habeas petitions can be filed and resolved before his commitment/recommitment terms expire. Cf.Roe v. Wade, 410U.S. 113, 125 (1973) (right to abortion claim capable of repetition yet evading review because usual appellate process exceeds nine months). The "capable of repetition yet evading review" exception will not be applied here.

  Even if the petition was not moot, it would have to be denied as meritless. Qawi's argument that he was medicated and forced to testify is directly contradicted by the state court record which shows that he declined to testify. See Resp. Exh. 4. And Qawi's claims that he was unable to access this court due to his medication and the denial of writing supplies is meritless in light of the fact that he did in fact file the petition which this order addresses. See Lewis v. Casey, 518 U.S. 343, 354 (1996) (right of access to court is limited to initiation of an action; state is not required to enable the prisoner to discover grievances or to litigate effectively once in court). To the extent one considers the access to the courts contentions to be arguments against a finding of mootness, they would be rejected. Mootness deprives this court of its power to act, however it came to exist. See Spencer. 523 U.S. at 18.


  Qawi's habeas petition challenges a 2002 decision that no longer keeps him in custody. He is currently in custody pursuant to a 2003 decision. Even if Qawi's claims concerning his 2002 recommitment proceeding had merit, the court not grant any effective relief because that commitment has ended. The petition is DISMISSED as moot. The clerk shall close the file.



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