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Johnson v. Hedgpeth


July 18, 2009


The opinion of the court was delivered by: George H. WU United States District Judge


On April 28, 2009, Anthony Wayne Johnson, Jr., ("petitioner"), proceeding pro se, filed this federal petition for writ of habeas corpus challenging a 2005 California conviction for misdemeanor battery and its resulting, and now expired, 14-day sentence. Petitioner is currently serving a 15-year, 8-month sentence in California as a result of subsequent firearm-related convictions. Because petitioner is not "in custody" pursuant to the conviction he seeks to challenge here, this matter is DISMISSED WITH PREJUDICE.*fn1


According to the petition and the exhibits attached to it, on April 26, 2005, petitioner pled guilty in San Bernardino County Superior Court case no. MWV096528 to misdemeanor battery ("the misdemeanor conviction"). He was sentenced to 14 days in custody as a result.

On November 22, 2006, a San Bernardino county jury convicted petitioner in case no. FWV038022 ("the felony conviction") of two counts of unlawful firearm activity, two counts of shooting at an occupied motor vehicle, and assault with a firearm. He was sentenced to 15 years, 8 months in state prison.

On December 20, 2006, petitioner filed a direct appeal of the felony conviction, which was denied on November 8, 2007. He petitioned the California Supreme Court for review, which was denied on January 24, 2008.

He then filed a series of habeas petitions in the San Bernardino County Superior Court, the California Court of Appeal, and the California Supreme Court. Most recently, according to the California Courts online case information system,*fn2 on March 2, 2009, petitioner filed a petition for writ of habeas corpus in the California Supreme Court, case no. S170923, which is pending.

This federal petition followed.


Petitioner raises two grounds in his federal petition. The first challenges the adequacy of his trial counsel in his misdemeanor case. The second proclaims that he is innocent of the misdemeanor conviction and contends that the purported victim, his former girlfriend, lied to the police and the court and later recanted her accusations.

The gravamen of the petition, however, is that his current felony sentence is unconstitutional because the trial court relied on the allegedly improper misdemeanor conviction as a basis for enhancement.


A. Duty to Screen

This court has a duty to screen applications for habeas corpus relief. See Rules Governing § 2254 Cases in the United States District Courts, Rule 4 Advisory Committee Notes; see also Calderon v. United States Dist. Court for the N. Dist. of Cal. (Nicolaus), 98 F.3d 1102, 1109 (9th Cir. 1996) (concurring opinion). If it plainly appears from the face of the petition and any annexed exhibits that the petitioner is not then entitled to relief in the district court, the judge shall make an order for summary dismissal of the petition. Rules Governing § 2254 Cases in the United States District Courts, Rule 4; see also Local Civil Rule 72-3.2 (authorizing magistrate judge to prepare proposed order for summary dismissal and proposed judgment for district judge if it plainly appears from face of petition and attached exhibits that petitioner is not entitled to relief).

B. "In Custody" Requirement

A federal court may entertain a habeas petition brought by "a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a) (1996). This means that a federal habeas petitioner must "be 'in custody' under the conviction or sentence under attack at the time his petition is filed." See Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (citing Carafas v. LaVallee, 391 U.S. 234, 238 (1968)). A habeas petitioner does not remain "in custody" under a conviction after the sentence imposed for it has fully expired, even if the prior conviction has been or will be used to enhance the sentence imposed for any subsequent crime of which he is convicted. Id. "When the second sentence is imposed, it is pursuant to the second conviction that the petitioner is incarcerated and is therefore 'in custody.'" Id. Accordingly, it is that conviction that a petitioner must challenge. See id.

Petitioner is currently in state custody, but not pursuant to the 2005 misdemeanor conviction and resultant 14-day sentence he is challenging here, which has expired. He is, instead, incarcerated now due to his later felony conviction.

Indeed, in the order denying one of petitioner's 2008 state court habeas petitions, by which he apparently challenged the misdemeanor conviction, San Bernardino Superior Court Judge John P. Wade denied the petition for a number of reasons, including that the misdemeanor conviction had expired:

The petitioner is not in custody for case no. MWV 096528. Habeas Corpus only applies to persons in custody.

(Pet., attached April 11, 2008, order).

Petitioner challenges his expired misdemeanor conviction only because he contends it was used to enhance his current sentence. Because petitioner is no longer in custody under that misdemeanor conviction and sentence, however, this court lacks jurisdiction to consider a habeas challenge to it. See Maleng v. Cook, 490 U.S. at 491-92.

In any event, once the foundational conviction is no longer subject to review, there is no federal constitutional right to challenge an enhanced sentence on the ground that a foundational conviction was unconstitutionally obtained. Lackawanna County Dist. Atty. v. Coss, 532 U.S. 394, 403 (2001).

Because habeas relief is therefore precluded here,*fn3 IT IS ORDERED that the petition is denied and dismissed with prejudice.

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