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HOUSTON v. KENNEALLY

United States District Court, S.D. California


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 custody" requirement of section 2254(a).*fn3

  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.

  II. Mootness

  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 Court stated:

  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 14.

  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 Violation

  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 (2004),

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 claim.
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. 1979).

  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 . . ." Id.

  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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