United States District Court, S.D. California
November 15, 2005.
ERNEST LEE HOUSTON, Petitioner,
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
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.)
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 custody" requirement of section
Here, Petitioner challenges the July 2003 Revocation, not the
2003 Conviction or the 1996 Conviction. After the July 2003
Revocation, Petitioner remained "in custody" until September 20,
2003, when he was released on parole. However, Petitioner did not
seek habeas relief regarding the legality of the July 2003
Revocation until December 2, 2004, nearly a year after he was
released from custody pursuant to the July 2003 Revocation. Thus,
unlike Spencer, Petitioner was not "in custody" at the time he
filed his Petition. Therefore, this Court finds that the Petition
must be dismissed on this ground.
Respondent contends that because Petitioner no longer suffers
restraint from the judgment being challenged, his claim is moot.
(PA at 4.) Petitioner contends that although he is currently
paroled, he may still be taken back into custody, therefore, his
claim is not moot. (Objection at 3.)
In order to overcome mootness, federal law requires that a
petitioner seeking habeas relief either be in custody at the time
the petition is filed, or prove "collateral consequences"
resulting from a conviction or probation revocation, where the
petitioner is no longer in custody. In, Spencer the Supreme
An incarcerated convict's (or a parolee's) challenge to the
validity of his conviction always satisfies the case-or-controversy requirement, because the
incarceration (or the restriction imposed by the terms of the
parole) constitutes a concrete injury, caused by the conviction
and redressable by invalidation of the conviction. 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. In recent decades, we have been
willing to presume that a wrongful criminal conviction has
continuing collateral consequences . . .
Spencer, 523 U.S. at 7-8.
However, after recognizing that "collateral consequences" are
presumed where a defendant has suffered a wrongful conviction,
the Court in Spencer refused to extend this presumption to
parole revocations. Id. at 14. However, a petitioner may
nonetheless prove the existence of collateral consequences
resulting from a parole revocation in order to overcome mootness.
Id. Failure to prove collateral consequences resulting from an
expired parole revocation subjects a petition to dismissal.
Here, Petitioner was released from custody pursuant to the July
2003 probation revocation on September 20, 2003, but his Petition
challenging that revocation was not filed until December 2, 2004,
well after the term imposed as a result of the July 2003
Revocation expired. Thus, in order to overcome mootness,
Petitioner must prove the existence of "collateral
consequences" resulting from the probation revocation. Id. at
Petitioner presents no evidence demonstrating that "collateral
consequences" have resulted from the parole revocation. In
Carafas, the Court identified several "collateral consequences"
sufficient to demonstrate a persisting injury and overcome
mootness: an inability to engage in certain businesses, vote, or
to serve as a juror. Id. at 237-38. Petitioner fails to prove,
or even mention in either his Petition or his Objection, any
collateral consequences resulting from the July 2003 Revocation,
nor can they be inferred by a liberal interpretation of his
Petition. Petitioner simply makes an assertion that his parole
was wrongfully revoked, with no proof of collateral consequences.
Because Petitioner no longer suffers restraint from the
challenged parole revocation, Petitioner must prove the existence
of collateral consequences. This Court finds that Petitioner
failed to prove the existence of collateral consequences, and
therefore, his claim is moot. Accordingly, this Court recommends
the Petition be dismissed on this ground. III. Failure To Allege Facts Giving Rise To A Constitutional
Respondent contends that Petitioner fails to state a cognizable
claim for which federal habeas corpus relief may be granted,
because he fails to allege facts giving rise to the existence of
a constitutional violation. (PA at 4.) Petitioner contends that
he has carried his burden in alleging facts that demonstrate a
constitutional violation. (Objection at 3.)
As a basic proposition, only claims which allege a violation of
the federal constitution are cognizable on federal habeas review.
28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68
(1991). "In conducting habeas review, a federal court is limited
to deciding whether a conviction violated the Constitution, laws
or treaties of the United States." Id. at 68. "Conclusory
allegations which are not supported by a statement of specific
facts do not warrant habeas relief." James v. Borg, 24 F.3d 20,
26 (9th Cir. 1994). Claims not cognizable in federal habeas
review are subject to dismissal.
From the outset, Petitioner's argument is fatally flawed
because he relies on the allegedly false extortion charge to
demonstrate a constitutional violation; yet because Petitioner's
extortion charge was dismissed, Petitioner suffered no injury.
(Petition at 5; Lodgment No. 6 at 2.) Thus, Petitioner's claim
that his parole was revoked as a result of the false extortion
charge is a mischaracterization of the events as contained in the
record. Petitioner's parole was revoked because he submitted a
drug test that tested positive for cocaine and then admitted to
cocaine use. (Lodgment No. 5 at 2.) Petitioner's drug use was the
basis of the revocation, not Officer Alvarado's allegedly false
accusation that Petitioner committed extortion. Thus, Petitioner
was not held as the result of even an alleged Constitutional
violation. Additionally, Petitioner makes conclusory allegations
against Officer Alvarado with not one supporting fact.
"Conclusory allegations which are not supported by a statement of
specific facts do not warrant habeas relief." Borg,
24 F.3d at 26. Therefore, this Court recommends that the Petition be
dismissed on this ground as well.
IV. "Fair Presentation" To The State Court
Respondent contends that because Petitioner's claims were never
"properly presented" to the state court, his available state
remedies remain unexhausted, requiring dismissal. (PA at 5.)
Here, Petitioner filed a Petition for Writ of Habeas Corpus with
the California Supreme Court, which was denied without comment, but included this citation: "(See In re
Swain (1949) 34 Cal.2nd 300, 304; People v. Duvall (1995)
9 Cal.4th 464, 474.)" (Lodgment No. 11 at 1.)
In order to satisfy state exhaustion requirements, a petitioner
must "fairly present" all federal claims to the state supreme
court, before the federal court may rule on the federal petition.
As the Supreme Court explained in Baldwin v. Reese, 541 U.S. 27
Before seeking a federal writ of habeas corpus, a
state prisoner must exhaust available state remedies,
28 U.S.C. § 2254(b)(1), thereby giving the State the
"opportunity to pass upon and correct" alleged
violations of its prisoners' federal rights. To
provide the State with the necessary "opportunity,"
the prisoner must "fairly present" his claim in each
appropriate state court (including a state supreme
court with powers of discretionary review), thereby
alerting that court to the federal nature of the
Baldwin, 541 U.S. at 29 (2004) (citation omitted); see also
Kelly v. Small, 315 F.3d 1063
, 1069 (9th Cir. 2003); Borg,
24 F.3d at 24; Carothers v. Rhay, 594 F.2d 225
, 228 (9th Cir.
Furthermore, with respect to citations attached by the
California Supreme Court to otherwise commentless postcard
denials of habeas petitions, the 9th Circuit stated:
In denying habeas corpus petitions without opinion
the [California Supreme] Court now frequently cites
either a California Supreme Court case or some other
authority which indicates to the petitioner the
grounds for the denial. For example, if the
petitioner did not "allege with particularity the
facts upon which he would have a final judgment
overturned," the California Supreme Court will cite
In Re Swain, 1949, 34 Cal.2d 300, 209 P.2d 793, in
its postcard order. These citations may indicate to
the petitioner that his petition has been denied on
procedural grounds (such as a citation to Swain)
. . .
Harris v. Superior Court of State of Cal., Los Angeles County,
500 F.2d 1124
, 1127-28 (9th Cir. 1974).
However, a citation to Swain does not establish per se a
failure to exhaust. When faced with a Swain cite, the Federal
Court must independently examine the California Supreme Court
petition to determine whether the claims were "fairly presented."
Kim v. Villalobos, 799 F.2d 1317, 1319 (9th Cir. 1986).
A citation to People v. Duvall, 886 P.2d 1252, 1258 (Cal.
1995) indicates that Petitioner did not "satisfy the initial
burden of pleading adequate grounds for relief' because he did
not "state fully and with particularity the facts on which relief
is sought" or "include copies of reasonably available documentary
evidence supporting the claim . . ." Duvall, 886 P.2d at 1258.
However, `[c]onclusory allegations made without any explanation
of the basis for the allegations do not warrant relief . . ."
Here, the Supreme Court of California denied Petitioner's
claim, citing both Swain and Duvall. Thus, it is reasonable
for this Court to assume that the California Supreme Court denied
the state Petition because Petitioner failed to allege with particularity facts that
warrant relief. Swain, 209 P.2d at 796; Duvall,
886 P.2d at 1258. Therefore, this Court makes an independent examination of
his state Petition to determine whether his claim was "fairly
presented" to the California Supreme Court.*fn4 Kim,
799 F.2d at 1319.
Here, Petitioner's claim in the state Petition is essentially
the same claim presented to this Court-that Petitioner's state
and federal constitutional rights were violated when Officer
Alvarado falsified his drug test and falsely accused him of
extortion. (Petition at 5; Lodgment No. 11 at 4.) However, these
two allegations fail to allege facts that give rise to a
constitutional violation warranting relief. First, Petitioner's
allegation regarding the drug test was sufficiently belied when
he admitted using drugs at the July 2003 Revocation. (Lodgment
No. 5 at 2.) Second, his allegation regarding the false extortion
charge fell short of reaching constitutional magnitude because
the charge was dropped and therefore had no bearing on
Petitioner's parole being revoked. (Lodgment No. 6 at 2.)
After an independent review of the state Petition, this Court
finds that because Petitioner failed to allege with particularity
facts that give rise to a constitutional violation, he failed to
fairly present his claim to the California Supreme Court. Kim,
799 F.2d at 1319. Therefore, this Court recommends that
Petitioner's federal habeas Petition be dismissed on this
ground.*fn5 CONCLUSION AND RECOMMENDATION
For all of the foregoing reasons, IT IS HEREBY RECOMMENDED
that the Court issue an order: (1) approving and adopting this
Report and Recommendation and (2) directing that judgment be
entered granting Respondent's Motion to Dismiss. This Report and
Recommendation is submitted to United States District Judge Roger
T. Benitez, pursuant to 28 U.S.C. § 636(b)(1) and Local Civil
Rule HC.2 of the United States District Court for the Southern
District of California.
IT IS ORDERED that no later than December 16, 2005 any
party to this action may file written objections with the Court
and serve a copy on all parties. The document should be captioned
"Objections to Report and Recommendation."
IT IS FURTHER ORDERED that any reply to the objections shall
be filed with the Court and served on all parties no later than
December 27, 2005. The parties are advised that failure to file
objections with the specified time may waive the right to raise
those objections on appeal of the Court's order. Turner v.
Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst,
951 F.2d 1153, 1156 (9th Cir. 1991).
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