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HOUSTON v. KENNEALLY

November 15, 2005.

ERNEST LEE HOUSTON, Petitioner,
v.
DENNIS KENNEALLY, Executive Director of the California Board of Parole Hearings, Respondent.



The opinion of the court was delivered by: LOUISA PORTER, Magistrate Judge

REPORT AND RECOMMENDATION GRANTING RESPONDENT'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS
INTRODUCTION
Petitioner Ernest Lee Houston, proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. section 2254, alleging that his state and federal constitutional rights were violated when his parole officer falsely accused him of extortion, causing his parole to be revoked. (Petition at 5.) Respondent moves to dismiss the Petition on the grounds that Petitioner fails to state a cognizable claim for which federal habeas corpus relief may be granted and that Petitioner failed to exhaust available state court remedies. (Motion to Dismiss at 1.) This Court has reviewed the Petition for Writ of Habeas Corpus, Respondent's Motion to Dismiss, Petitioner's Objection to Respondent's Motion to Dismiss and all supporting documents. After thorough review, this Court recommends Respondent's Motion to Dismiss be GRANTED and the Petition for Writ of Habeas Corpus be DISMISSED for the reasons outlined below. STATE COURT PROCEEDINGS

On May 23, 1996, Petitioner was convicted for the transportation/sale of a controlled substance with two prison prior convictions and was sentenced to eight years in state prison ("1996 Conviction"). (Lodgment No. 2.) On December 21, 2002, Petitioner was released on parole, but was arrested and returned to custody on June 12, 2003, after his parole officer, Officer F. Alvarado, accused him of cocaine use and extortion. (Lodgment No. 3; Lodgment No. 4 at 1.) Officer Alvarado based the cocaine allegation on a June 3, 2003 urine sample that tested positive for cocaine, and based the extortion charge on a telephone call the officer received from an anonymous woman who claimed that Petitioner forced her to give him $25. (Id.)

  On July 30, 2003, a parole revocation hearing was held before the Board of Prison Terms ("Board"), in which Petitioner admitted the cocaine use, but denied committing extortion. (Lodgment No. 5 at 2.) The Board found Petitioner in violation of his parole for the cocaine use, but later dismissed the extortion charge ("July 2003 Revocation"). (Lodgment No. 5 at 2, 4; Lodgment No. 6 at 2.) Petitioner was returned to custody, where he remained until he was paroled again on September 20, 2003. (Lodgment No. 7.) On December 11, 2003, Petitioner was arrested for selling cocaine to an undercover San Diego police officer. (Lodgment No. 8 at 11.) He pled guilty to possession for sale of cocaine base and was sentenced to three years in state prison ("2003 Conviction"). (Lodgment No. 9.) Petitioner has since been paroled on the 2003 Conviction. (Docket No. 20 at 1.)

  FEDERAL COURT PROCEEDINGS

  After Petitioner's 2003 Conviction, he filed a Civil Rights Complaint pursuant to 42 U.S.C. section 1983, alleging that his constitutional rights were violated when Officer Alvarado falsified his drug test and falsely accused him of extortion, which caused his parole to be revoked at the July 2003 Revocation. (Lodgment No. 10 at 1.) This Court dismissed the Civil Rights Complaint because Petitioner failed to state a cognizable constitutional claim upon which relief could be granted. (Lodgment No. 10 at 2-3.) This Court noted in its dismissal order that, for Petitioner to successfully state a cognizable claim, he would first have to prove that the July 2003 Revocation was either: reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by the issuance of a Writ of Habeas Corpus. (Lodgment No. 10 at 3.)

  Accordingly, on December 2, 2004, Petitioner filed a Petition for Writ of Habeas Corpus in the California Supreme Court, in which he requested habeas relief on two grounds. (Lodgment No. 11 at 4-5.) Petitioner's first ground mirrors the claim before this Court, in which he alleged that his state and federal constitutional rights were violated when Officer Alvarado falsely accused him of extortion. (Id. at 4.) Petitioner's second ground alleged that his state and federal constitutional rights were violated when Officer Alvarado made a false statement to the Board and included a false statement in her report to the Board regarding Petitioner's need for supervision around children.*fn1 (Id. at 5.) The California Supreme Court denied the Petition, citing In re Swain, 209 P.2d 793, 796 (Cal. 1949) and People v. Duvall, 886 P.2d 1252, 1258 (Cal. 1995), without further comment. (Lodgment No. 11 at 1.)

  Petitioner filed the instant Petition in the U.S. District Court for the Central District of California. (Docket No. 1 at 9.) The Petition was transferred to this Court on March 1, 2005. (Docket No. 1 at 2.) On April 13, 2005, Respondent Thomas Vaughn, in his capacity as Warden of Chuckawalla Valley State Prison, filed a Motion to Dismiss the Petition along with a Memorandum of Points and Authorities in Support of the Motion to Dismiss (PA) with this Court. (Docket No. 7; Docket No. 8.) Petitioner filed an Objection to Respondent's Motion to Dismiss. (Docket No. 19.) On August 10, 2005, Magistrate Judge Louisa S Porter sua sponte ordered the substitution of Dennis Kenneally, Executive Director of the California Board of Parole Hearings as Respondent in place of Thomas Vaughn. (Docket No. 20 at 1-2.)

  DISCUSSION

  Respondent moves this Court to dismiss the Petition on two grounds. First, Respondent contends that Petitioner fails to state a cognizable claim for which federal habeas corpus relief may be granted. Second, Respondent contends that Petitioner failed to exhaust his available state court remedies. (Motion to Dismiss at 1.) Although Respondent asserts these two main grounds for dismissal in the Motion to Dismiss, Respondent also includes additional, specific arguments in the Points and Authorities. Thus, for clarity, the Court addresses Respondent's arguments as follows: 1) Petitioner is improperly before this Court because he is in custody for an offense unrelated to the cause of action about which he complains in the instant petition,*fn2 2) Petitioner is no longer in custody from the judgment being challenged, rendering his claim moot, 3) Petitioner fails to allege facts giving rise to a constitutional violation, and 4) Petitioner failed to exhaust his state remedies by failing to "fairly present" a federal violation to the state courts. (PA at 4-5.)

  I. The "In Custody" Requirement Of 28 U.S.C. Section 2254(a)

  Respondent contends that Petitioner is improperly before this Court because he is in custody for an offense that it is unrelated to the cause of action about which he complains in the instant Petition. (PA at 4.) Petitioner contends that although he was on parole at the time he filed his Petition, he nonetheless satisfies the "in custody" requirement because his parole could again be revoked at any time. (Petitioner's Objection to Respondent's Motion to Dismiss (Objection) at 2.)

  28 U.S.C. section 2254(a) limits the issuance of a writ of habeas corpus to a person "in custody," pursuant to a judgment of a state court in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). A person who is on parole at the time he files his federal habeas petition satisfies the "in custody" requirement, despite the fact that he may be free from the literal restraint imposed by incarceration. Jones v. Cunningham, 371 U.S. 236, 238 (1963). However, the petitioner must be `in custody' under the conviction or sentence under attack at the time his petition is filed. Maleng v. Cook, 490 U.S. 488, 490-91 (1989); see also Spencer v. Kemna, 523 U.S. 1, 6 (1998); Carafas v. LaVallee, 391 U.S. 234, 238 (1968). Failure to satisfy the "in custody" requirement subjects a Petition to dismissal.

  In Spencer, after the defendant's parole was revoked and he was returned to custody, he immediately filed a habeas petition challenging the legality of the parole revocation. However, before habeas relief was granted, he was re-released on parole. In granting certiorari, the Supreme Court's main focus was whether the defendant's claim was moot, since he was no longer in custody by the time the District Court reached the issue. However, before addressing mootness, the Supreme Court addressed the District Court's conclusion that the defendant no longer satisfied the "in custody" requirement of section 2254(a), stating:
The District Court's conclusion that Spencer's release from prison caused his petition to be moot because it no longer satisfied the "in custody" requirement of the habeas statute was in error. Spencer was incarcerated by reason of the parole revocation at the time the petition was filed, which is all the "in custody" provision of 28 U.S.C. § 2254 requires.
Spencer, 523 U.S. at 7 (emphasis added).

  Thus, because the defendant in Spencer filed his habeas petition while he was "in custody" as a result of the challenged revocation, he satisfied the "in ...


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