United States District Court, N.D. California
April 1, 2004.
KANURI SURGURY QAWI, Petitioner;
DAVE GRAZIANI, Respondent
The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
The petition for writ of habeas corpus is dismissed as moot.
IT IS SO ORDERED AND ADJUDGED.
ORDER OF DISMISSAL
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
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
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
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
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
(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
IT IS SO ORDERED.
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