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Simpson v. Moore


September 2, 2009



Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to Eastern District of California local rules.

On June 12, 2009, the Magistrate Judge filed findings and recommendations herein which were served on the parties and which contained notice that the parties may file objections within a specified time. Timely objections to the findings and recommendations have been filed. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court declines to adopt the findings and recommendations.

The Magistrate Judge recommended dismissal of petitioner's petition on the grounds that 1) petitioner had not asserted that his plea was invalid, thereby precluding him from any relief under § 2254, and 2) because petitioner was released from custody after the filing of his petition, his petition is moot. The court respectfully cannot agree with either analysis.

First, the Magistrate Judge was correct in stating that where a defendant has pled guilty (or no contest), he may challenge the plea for not having been made knowingly, intelligently, or voluntarily, but may not challenge the constitutionality of pretrial proceedings. See Lefkowitz v. Newsome, 420 U.S. 283, 288 (1975). The Magistrate Judge concluded that because petitioner's petition did not appear to attack the validity of his plea, it did not state a tenable basis for relief.

The court, respectfully, cannot agree. In his petition, petitioner states a claim for ineffective assistance of counsel. Under Hill v. Lockhart, 474 U.S. 52, 58 (1985), a petitioner may be entitled to habeas relief where he shows that his counsel's ineffective assistance resulted in an involuntary plea. Although it is unclear from the petition precisely what petitioner alleges in this claim, the court cannot conclude that it is plain from the face of the petition that petitioner is not entitled to relief. See Federal Rules Governing Section 2254 Cases, Rule 4.

Second, a petition for habeas corpus does not become moot if the petitioner is released from custody after its filing. The Supreme Court expressly addressed this in Spencer v. Kemna, 523 U.S. 1 (1998). There, it held,

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. It further held that the petitioner's release from custody did not offend Article III's "case or controversy" requirement so long as it appeared that the petitioner could suffer adverse collateral consequences as a result of the conviction. Id. at 7-14. Under longstanding Circuit precedent, there is a presumption that any criminal conviction carries with it collateral consequences. See, e.g., Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005); Chacon v. Wood, 36 F.3d 1459, 1463 (9th Cir. 1994) overruled on other grounds by 28 U.S.C. § 2254(c); Hirabayashi v. United States, 828 F.2d 591, 605-606 (9th Cir. 1987).

The Magistrate Judge's reliance on Burnett v. Lampert, 432 F.3d 996 (9th Cir. 2005), on this issue appears to be misplaced. In Burnett, the court considered the unusual circumstance in which petitioner filed his habeas corpus petition while incarcerated, asserting that his parole was unlawfully delayed. Burnett, 432 F.3d at 999. While his petition was pending, he was released on parole and then reincarcerated as a result of a parole violation. Id. The Court of Appeals concluded that, although petitioner's original incarceration and his reincarceration both flowed from the same underlying conviction, "the two periods of time are not fungible." Id. at 1000. The period of reincarceration had not resulted from the illegality alleged in petitioner's habeas corpus petition; instead, it had resulted from his parole violation. Id. at 1000-1001. As such, the petition had become moot. Id.

Burnett is not instructive here, as there is no indication that petitioner's petition would be considered moot for any reason other than his release from incarceration. As explained above, this is not a valid basis for denial of the petition. See Spencer, 523 U.S. at 7; Chaker, 428 F.3d at 1219.

Accordingly, IT IS HEREBY ORDERED that:

1. The court declines to adopt the June 12, 2009 findings and recommendations.

2. The case is referred to the magistrate judge for proceedings consistent with this order. IT IS SO ORDERED.


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